By Steve Rhodes
POST-RULING UPDATE BELOW . . .
Angry that the U.S. Supreme Court’s decision this morning will be based on politics?
Let me ask you a question: To what degree is your view on what the court should decide based on politics?
Unless you are one of the very few who have actually read the legal briefs and listened to the oral arguments and researched the legal analyses of the case, your view is the one based on politics.
I once posted on Facebook a status update that said something like “A law’s constitutionality isn’t based on whether you like it or not.”
The responses seemed to assume this was a shot at Republicans and the court. It wasn’t. In fact, it was directed more at liberals, though it was directed at everyone.
Similarly, presumed good intentions or outcomes of a law don’t confer constitutionality upon it. Just because insurance companies must under this law issue policies to those with pre-existing conditions doesn’t make the mandate that those companies demanded in exchange – they ran the numbers and it’s quite a profitable structure – constitutional.
So spare me in advance of your righteous political anger.
That’s not to say I don’t believe the court is political. Antonin Scalia, in particular, is not only a political player but one often misstating the facts residing on the ground here on planet Earth.
Now, if court strikes down part or all of Obamacare by a vote of more than 5-4 (as I suspect it will), does that make the decision non-partisan? If the court upholds the law is it suddenly non-partisan?
The court has suffered greatly in credibility over the years, starting with Bush v. Gore in my view, though it would be interesting to see what court scholars have to say about the matter. The combination of ugly confirmation battles and obsequious, useless confirmation hearings don’t help. Restoring public confidence in the court is a fairly urgent task. I’m sure there are ideas out there. (The best political response to Bush v. Gore would have been to eliminate the Electoral College; with a close result apparently ahead of us this fall, you can bet each campaign is already gaming out strategies to cope with a popular vote that does not elect a president in America, much less the state-by-state strategy already in place that leaves much of the country out of the process because their states are already “red” or “blue.”)
But the real part of the politicization of Obamacare that disgusts me is how utterly hypocritical nearly every vociferous voice in the debate is. Not an unusual complaint, I know, but one that perhaps is the primest example currently out there.
First, consider how evil Obamaphiles painted Hillary Clinton during the 2008 primary for including a mandate in her health care proposal. How odd; liberals for years had championed a mandate. But hey, follow The Leader.
The intense debate during the primary didn’t change Obama’s mind, but his position mysteriously evolved once he had dispatched Clinton.
Likewise, Obamacare supporters like to point out that the mandate – and in fact the very core of the president’s plan – evolved out of the conservative Heritage Foundation.
This is something to brag about?
See? Conservatives won the debate!
Make no mistake, Republican hypocrisy is nearly as great; it has long been conservative gospel that the federal government should not regulate any kind of national health care, but all you have to do is hold this column to a mirror to see that the doublespeak goes both ways. This is what Americans hate about politics.
And I believe it’s true that conservatives simply don’t care as much as liberals about the fate of people without health care. Sink or swim.
I also believe, though, that a lot of Democrats give lip service to their so-called ideals in order to score political points; that’s why they’ll change their positions on a dime if it suits their cynical purposes.
What gets lost in all of this – along with the Big Pharma deal-making and string of broken promises like putting the negotiations on CNN, which people took seriously, as they should have – is the real human cost to the bullshit. People die.
And true health care reform gets kicked down the road – again.
Few people have a right to feel righteous about that.
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As I’ve written more than once (among many, many others), some of us have always supported a mandate – except when that became a mandate to buy a policy from a hugely profitable private sector provider. That wasn’t what we had in mind. And that’s really the crux of the matter.
The notion that the federal government can force its citizens to purchase a consumer product in the private market is indeed a constitutional one, and whether you think it can or can’t ought not be decided by which political party you belong to.
POST-RULING UPDATE: Initial thoughts based on early reports . . . The court indeed seems to have ruled the mandate unconstitutional – as constructed under the Commerce Clause. In other words, the federal government cannot compel citizens to buy a private product. However, the court decided that the mandate could stand by simply calling it a tax – which is not how the Obama administration constructed it and in fact vociferously argued against. This, it seems was John Roberts’ way of forging a compromise that would also protect the court from partisan attack. It’s not necessarily wrong – in fact, it goes along with what I wrote on Wednesday about the constitutionality of Social Security – but what’s not clear to me is whether the Act must be reworked in some way or whether it simply is a tax because the court declares it so, even if it’s not collected as such.
I didn’t think Roberts would take this step, though Justice Ginsburg essentially suggested it during oral arguments when she said “[W]hy should we say it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.”
On the other hand, Justice Sotomayor asked if the Act should be sent back to Congress for them to fix it.
“If we strike down one provision, we are not taking that power away from Congress. Congress could look at it without the mandatory coverage provision and say, this model doesn’t work; let’s start from the beginning,” she said. “Or it could choose to fix what it has. We are not declaring – one portion doesn’t force Congress into any path . . . Because Congress would choose to take one path rather than another. That’s sort of taking onto the Court more power than one I think would want.”
Roberts chose to salvage it by stating in his opinion that the court’s job should be to “conserve” legislation rather than destroy it. I’m sure he was mindful of the political implications of using that word.
Likewise, the Obama administration didn’t want to associate anything that could be called a tax with its plan, which is why they constructed the Act the way they did and argued chiefly for its constitutionality under the Commerce Clause. And that didn’t fly, though the outcome accrues to Obama’s advantage.
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Comments welcome.
Posted on June 28, 2012