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Reading the tea leaves on SCOTUS
Jun. 28th, 2012 05:38 amToday, the Supreme Court is expected to rule on the Affordable Care Act aka Obamacare. Crowds are already gathering at the US Supreme Court this morning. Every pundit in Washington is anticipating the ruling. Pundits and prognosticators are reading the tea leaves to predict what will happen, picking apart each turn of phrase to find some hint or clue as to how this or that Justice will rule. The anticipation makes a kid before Christmas look apathetic by comparison.
Really, I don't think it's that complicated to predict how the Court will rule. I expect SCOTUS to strike down the entire law, 5-4, with Roberts writing the majority opinion for Thomas, Scalia, Kennedy and Alito. Their reasoning will be that the mandate is unconstitutional, and that the lack of a severability clause means that if any part of the law is unconstitutional, the whole thing must be thrown out. Their actual motivations will be purely partisan. The four liberals on the court - Breyer, Kegan, Ginsberg and Sotomayor - will all vote to uphold the law, and IMO their actual motivations will be partisan as well. I don't need to point to one Justice's or another's state of mind to predict this, and frankly I think such efforts are foolish. We just need to look at how the Justices ruled on similar cases with huge implications for which party or interests will control the reigns of power.
After that, both Democrats and Republicans will spend years blaming each other for coming up with the idea of mandatory health insurance first.
In anticipation of such an argument, here's what I've been able to dig up: the Heritage Foundation, a conservative think tank, put forth the idea of mandatory catastrophic insurance in 1989. This was right after an election in which Mike Dukakis ran on, among other things, his Massachusetts health care plan, which later turned into a huge drain on state coffers. Mitt Romney embraced this idea of a mandate in the 1990s, implemented it in his own Massachusetts health plan, and defended it as recently as last year. This makes a lot of people on the right uncomfortable with him. As for the Democrats, Clinton embraced it during her run for President, and Obama opposed it on the grounds that it would force poor people to buy a product they can't afford. This was, in fact, one of the reasons why I supported Obama over Clinton. Nonetheless, the mandate ended up in the final bill, with subsidies for the poor in the form of tax breaks.
Howard Dean remarked, in 2010, that the mandate was not essential to the law, and that they could simply replace it with something like an annual 30-day sign-up period. First of all, I'm not sure that this works with exclusions for pre-existing conditions. Secondly, even if it could work, Congress is in no position to pass anything right now. Even if the leadership could come up with a compromise, Grover Norquist would crush anything that's remotely palatable to Democrats. Similar arguments by Progressives that an end to all or part of this health care law means a chance for a public option are even more delusional. Simply put, the Democrats would need another 60-vote majority in the Senate to do it, only this time without a Ben Nelson or Joe Lieberman to much things up. I don't see that happening in this post-Citizens United world.
Really, I don't think it's that complicated to predict how the Court will rule. I expect SCOTUS to strike down the entire law, 5-4, with Roberts writing the majority opinion for Thomas, Scalia, Kennedy and Alito. Their reasoning will be that the mandate is unconstitutional, and that the lack of a severability clause means that if any part of the law is unconstitutional, the whole thing must be thrown out. Their actual motivations will be purely partisan. The four liberals on the court - Breyer, Kegan, Ginsberg and Sotomayor - will all vote to uphold the law, and IMO their actual motivations will be partisan as well. I don't need to point to one Justice's or another's state of mind to predict this, and frankly I think such efforts are foolish. We just need to look at how the Justices ruled on similar cases with huge implications for which party or interests will control the reigns of power.
After that, both Democrats and Republicans will spend years blaming each other for coming up with the idea of mandatory health insurance first.
In anticipation of such an argument, here's what I've been able to dig up: the Heritage Foundation, a conservative think tank, put forth the idea of mandatory catastrophic insurance in 1989. This was right after an election in which Mike Dukakis ran on, among other things, his Massachusetts health care plan, which later turned into a huge drain on state coffers. Mitt Romney embraced this idea of a mandate in the 1990s, implemented it in his own Massachusetts health plan, and defended it as recently as last year. This makes a lot of people on the right uncomfortable with him. As for the Democrats, Clinton embraced it during her run for President, and Obama opposed it on the grounds that it would force poor people to buy a product they can't afford. This was, in fact, one of the reasons why I supported Obama over Clinton. Nonetheless, the mandate ended up in the final bill, with subsidies for the poor in the form of tax breaks.
Howard Dean remarked, in 2010, that the mandate was not essential to the law, and that they could simply replace it with something like an annual 30-day sign-up period. First of all, I'm not sure that this works with exclusions for pre-existing conditions. Secondly, even if it could work, Congress is in no position to pass anything right now. Even if the leadership could come up with a compromise, Grover Norquist would crush anything that's remotely palatable to Democrats. Similar arguments by Progressives that an end to all or part of this health care law means a chance for a public option are even more delusional. Simply put, the Democrats would need another 60-vote majority in the Senate to do it, only this time without a Ben Nelson or Joe Lieberman to much things up. I don't see that happening in this post-Citizens United world.
