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Posted by on Mar 29, 2012 in Economy, Health, Law, Politics | 7 comments

If the Health Law Is Struck Down…

Obama-the-constitutional-law professor is said, by reporters, to be fascinated by the Supreme Court’s discussion — sitting in Air Force One on his return to the US, glued to the Court’s arguments. Obama-the-president knows, the Times points out, that “there will be substantial political fallout no matter how the court rules.” And not just for the Obama administration.

Successful political races, particularly presidential campaigns, are built on planning for every likely outcome. Mitt Romney, should he secure the Republican nomination, would confront tricky political calculations regardless of the ruling, given his role in enacting a health care law in Massachusetts built around the same type of mandate at the heart of the Supreme Court case.

But for the White House and the president’s re-election team, the challenge begins immediately. They must publicly defend the law’s constitutionality and push back against suggestions that the battle is already lost, even as they privately piece together a contingency plan if the law — or part of it — is overturned.

The early outlines of the plan came into view on Wednesday as the administration aggressively promoted the more popular provisions of the health care law. …NYT

Business leaders are already finding themselves moving away from the Republican party. The issue? Too much stalling — too many delays and dead ends in Congress thanks to Republican members.

House conservatives are pressing to allow the U.S. Export-Import Bank, which has financed exports since the Depression, to run out of lending authority within weeks. The bank faces the possibility of shutting its doors completely by the end of May, when its legal authorization expires.

And a host of routine business tax breaks — from wind energy subsidies to research and development tax credits — cannot be passed because of Republican insistence that they be paid for with spending cuts.

Business groups that worked hard to install a Republican majority in the House equated Republican control with a business-friendly environment. But the majority is first and foremost a conservative political force, and on key issues, its ideology is not always aligned with commercial interests that helped finance election victories. …NYT

This “conservativism” may be simply narrow-minded ideology or it may be compounded by the Republican determination to put any available spoke in the wheels of the White House. Either way, their inaction appears to be losing them business support.


A common view is that a negative Supreme Court ruling could devastate the Obama presidency — nullify it, in effect. Liberal groups are gearing up to condemn the Court itself. Others, including conservatives, see this as a death knell for Romney’s presidency.

One liberal group formed to build public support for the law, Protect Your Care, plans to throw out its playbook if the justices rule against the administration. Instead of promoting the popular provisions in the law, the group would devote its time in the fall to going negative on the court itself — painting the conservative justices as partisan ideologues who robbed Americans of needed benefits. The messages would be aimed at seniors who might lose prescription drug benefits and young people who might lose access to their parents’ health insurance plans.

“Since Bush v. Gore, from the progressive side, it would be the most galvanizing Supreme Court ruling ever,” said Eddie Vale, a spokesman for the group. “You’d have a 5-4 court, in clearly a partisan political decision, striking down not just President Obama’s biggest legislative accomplishment but also the biggest progressive legislation since LBJ.”

Supporters of the law also think that Republican presidential front-runner Mitt Romney is in no position, because of his support as Massachusetts governor of a state-level individual mandate, to take political advantage if the statute is thrown out. If anything, they argue, such a ruling could prompt a discussion about whether Romney’s health-care overhaul, upon which Obama’s law was largely modeled, is unconstitutional. ...WaPo


EJ Dionne catches the Supreme Court pretending to be a backup legislature, not the judicial body it’s supposed to be. The conservative justices, notably, tended to get caught up in the “what if” speculations that are Congress’s job as it crafts a new policy.

Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.

Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?

It fell to the court’s liberals — the so-called “judicial activists,” remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.

Justice Stephen Breyer noted that some of the issues raised by opponents of the law were about “the merits of the bill,” a proper concern of Congress, not the courts. And in arguing for restraint, Justice Sonia Sotomayor asked what was wrong with leaving as much discretion as possible “in the hands of the people who should be fixing this, not us.” It was nice to be reminded that we’re a democracy, not a judicial dictatorship. ...WaPo

Except, of course, that we are and have been sustaining a judicial + corporate puppet government ever since Bush v. Gore. This puppet government may nullify Obama first, and then — should Romney win — nullify the successor administration for its centrist tendencies. Suddenly we see clearly what keeps the hopes of Santorum and Gingrich alive: they understand and accept the power of the puppeteers.


Dahlia Lithwick points out the obvious. This is about freeing Americans from obligations to each other. If you managed to pass second grade, you know that democracy depends on just that kind of obligation, an obligation the Court seems to want to nullify.

… Freedom also seems to mean freedom from the obligation to treat those who show up at hospitals without health insurance, even if it means letting them bleed out on the curb. When Solicitor General Donald Verrilli tries to explain to Justice Scalia that the health care market is unique because “getting health care service … [is] a result of the social norms to which we’ve obligated ourselves so that people get health care.” Scalia’s response is a curt: “Well, don’t obligate yourself to that.”

Freedom is the freedom not to rescue. Justice Kennedy explains “the reason [the individual mandate] is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.” …Slate

Anyone else spot the battle between bad boy and rescuing mom here? Is the Court’s problem mostly sexual? a problem of testosterone gone viral?

Cross posted from Prairie Weather