by Benjamin J. Kirby
Given the week I had last week (a visit to the ER for Duncan's knee, and a two year-old on antibiotics, to start), and the doc visit for myself I have scheduled this week, it seems appropriate to kick off the national conversation we'll all be having as the U.S. Supreme Court begins deliberations on the Affordable Care Act.
Looks like the Washington Post's Wonkbook has a really good run-down here. And by all accounts,the Justices are off and running with the issue.
And while you're devouring all of that, make it a point to read this from Charles P. Pierce at Esquire, which, as always, is right on. It'll give you a bit of insight into how the other side plans to game this out, should it be found constitutional.
So what's going to happen with health care reform?
I honestly don't know.
I think based on my very limited understanding of the whole thing, the Justices are in kind of a tough spot. The conservatives -- lead by Alito, Scalia, and Thomas, and possibly Roberts (but maybe not!) -- will look for ways to say it's unconstitutional because it's over-reach. If you're making me guess, I'd say they uphold it (that's just me... and 85% of American Bar Association selected legal experts).
Fortunately for me, Dahlia Lithwick, in her must-read piece for Slate, is right on when she says this isn't about the law or a Supreme Court deliberations: it's about politics.
So that brings us to the really interesting question: Will the Court’s five conservatives strike it down regardless? That’s what we’re really talking about next week and that has almost nothing to do with law and everything to do with optics, politics, and public opinion. That means that Justice Antonin Scalia’s opinion in the Raich medicinal marijuana case, and Chief Justice John Roberts’ and Anthony Kennedy’s opinions in Comstock only get us so far. Despite the fact that reading the entrails of those opinions suggest that they’d contribute to an easy fifth, sixth, and seventh vote to uphold the individual mandate as a legitimate exercise of Congressional power, the real question isn’t whether those Justices will be bound by 70 years of precedent or their own prior writings on federal power. The only question is whether they will ignore it all to deprive the Obama of one of his signature accomplishments.
Lithwick goes on to detail how the Court has kind of bent over backwards -- under the leadership of Chief Justice Roberts, it should be noted -- to rehab their post Bush v. Gore and Citizens Unitedimage.
I don't want to jinx anything here, but Lithwick kind of takes the Obama Administration to task for not defining and defending the Affordable Care Act earlier. Maybe she's right.
But in a coldly political sort of way, maybe he never had to. Look, if the Court strikes down health care reform, sure, they "rob" President Obama of a signature legislative accomplishment. But isn't his answer right there in the article? Hey, this is the Court that gave you Bush v. Gore. They gave you Citizens United. What did you expect? Basically, politicize the Court (more).
Yes, a slight majority of Americans already think the health law is unconstitutional. They're wrong. But many of them are already benefiting from the law. The law was created without a huge outcry from the public -- it was pushed through on pure political capital Obama carried with him from the election. All the kids getting kicked off their parent's insurance plans? All the pre-existing conditions suddenly not covered? I think the outrage would be real -- real enough for people to carry to the polls.
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