I HAVE "WHATEVER HURTS OBAMA MOST GOING FORWARD" IN THE SUPREME COURT HEALTH CARE POOL
(Sorry -- obligatory long post on health care.)
The health care bill hits the Supreme Court today -- and please, Court-watchers, spare me all the thoughtful explanations of why Scalia or Alito or Roberts or some combination of these guys might vote to uphold the law (I'm talking to you, Nina Totenberg). This is for the Movement. This is for the Cause. It doesn't matter that, say, Scalia upheld a reading of the Constitution's commerce clause in a marijuana case that seems relevant to this case. Only one thing is relevant to this case for the Court's Wingnut Four: the needs of movement conservatism.
It doesn't help the Cause for the Supremes to strike down the entire law, because then it won't be a rallying cry in November. Enough of the law has to be left in place to keep the GOP base's blood boiling. But I think the Wingnut Four will want to get rid of some of it -- Obama's doing well in the polls against Romney, and Romney continues to be an inept candidate, so they won't want to leave the law completely intact; mustn't risk the possibility that it will survive to be successfully implemented (even though leaving it intact would really rally the base: "we need Supreme Court justices who are even more right-wing!").
So I'm assuming the individual mandate will be declared unconstitutional. Now, I see that the Obama administration, somewhat surprisingly, has said that if the individual mandate is overturned, every provision of the law dependent on the mandate should also be overturned. It's as if the administration is saying, "Well, if you hurt the law, you should do the decent thing and effectively kill it." (And, of course, opponents of the law want the whole law overturned.)
Last week, in a New York Times op-ed, Abbe Gluck and Michael Graetz discussed this:
Both the Obama administration and the law’s opponents have one argument in common. They express concern about what might happen to health insurance markets if the mandate is severed from the statute but the requirements that insurance companies cover sick patients and don't charge them higher rates remain. If healthy people do not have to buy insurance and insurance companies are forced to cover the sick, they warn, insurance would be far more expensive.
So that's what I think the Wingnut Four will want to do: make mischief. They'll leave the law bleeding but able to survive -- but likely to be more expensive. Perfect! See? It's evil, wallet-snatching Big Government!
Under this scenario, Congress would face tremendous pressure to come up with an alternative to the mandate to encourage healthy people to buy health insurance.
Ha -- this Congress? Or even the next one? Feel pressure to salvage the law? This is a perfect recipe for creating anti-Obama chaos, while leaving enough of the law intact that the rubes will want to kill it altogether.
Ah, but there are only four apparatchik wingnuts on the Court -- what if they can't get a majority? Well, that's why we have today's consideration of the notion that the law can't even be challenged at all yet, because a nineteenth-century statute says you can't challenge a tax until someone has actually paid it. (The question under consideration is whether the health care law's fees are a tax for the purposes of that statute.) I find this curious:
Since no party in the Supreme Court litigation has claimed that the act applies, the court asked an independent lawyer to argue the position that the court cannot rule on the mandate's constitutionality until the financial penalties for failing to obtain insurance go into effect in 2015.
Did you follow that -- "no party in the Supreme Court litigation has claimed that the [nineteenth-century] act applies"? The Supremes went out and forced this into the case. Why? Because the Wingnut Four feel they can't risk taking the health care law up if there's even the slightest possibility that it will emerge free and clear and constitutional. So if they can't get a useful idiot to join them in an election-year mugging of Obama on any provision, they'll scrape together five votes for a punt based on this nineteenth-century law, and leave the health care act in legal limbo -- not approved, not rejected.
This is going to be a mugging. This is not going to be a proud moment for the Court. The Wingnut Four don't care.