Waiting for Götterdämmerung

Neera Tanden, president of the Center for American Progress:

If this court overturns the individual mandate, it will galvanize Democrats to use the courts as a campaign issue. The idea that we would have gone through Bush v. Gore, Citizens United and now this.

A computer sophisticated enough to calculate the infinitely unlikely odds of that happening has yet to be invented. The Court's striking down of the individual mandate would be exasperating, indeed infuriating, for Democrats. But to fashion, in whole or in part, an electoral campaign in a presidential year around a recondite anti-Court theme would be a colossal misstep, even for Democrats. No matter how infelicitous, comparisons inevitably would be made by Republicans to FDR's calamitous "Court packing" plan of '37 -- one of Roosevelt's relatively few but exceptionally ill-conceived political blunders.

At best, scattered reminders of a president's judicial-appointment power should come into play, but a resentment-dripping campaign by one branch (or two) of government against the federal judiciary would only compel a public reception imbued with boundless puzzlement, immeasurable indifference, or classically uninformed hostility. The American electorate's famed subliteracy has managed to interpret the individual mandate as monstrously unconstitutional; let's forbid all thought of what it could do with a public relitigation of "ObamaCare" or some byzantine debate over the legal concept of "judicial review."  

What President Obama & Democrats could make clear is that "judicial activism" apparently means -- Whatever the hell conservatives say it means. This morning, E.J. Dionne says it for them:

[If] conservative justices ... strike down or cripple the health-care law ... [then the] court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.

Implicit, perhaps, in Dionne's assessment is an even more painful sentiment, writ quite large: that the Court's ObamaCare decision, along the ideological lines of a Citizens United, looms as a mere epiphenomenon; that is, that our entire governmental system -- from a clueless electorate to once-unthinkable presidential war-making powers to a House overflowing with cretinous schmendricks to a Senate seized by seemingly incurable dysfunction to a judicial branch that legally rules only as it politically votes -- is locked into an inescapable state of doom.

Or, maybe not (insert happy face here). At least we have till the end of June to make that call.

Comments

[SueMe]

Never have I read a more clearly concise assessment of our current government than in your next to last paragraph. Excellent work, P.M.

[priscianus jr]

" ... our entire governmental system -- from a clueless electorate to once-unthinkable presidential war-making powers to a House overflowing with cretinous schmendricks to a Senate seized by seemingly incurable dysfunction to a judicial branch that legally rules only as it politically votes -- is locked into an inescapable state of doom."

. . . unless we vote the GOP out of office. Now.
(That's a campaign issue, in case you didn't notice. For discretion, leave out the clueless electorate part, you don't want to insult your audience.)

[Robert Lipscomb]

I am amused by the defeatism of the left. I listened to aboit two hours ofthe day individual mandate. I am no attorney but I can follow a logical argument.

The justices, including some conservatives, were all but begging the administration's attorney to address the critical issues, but he fell all over himself. But this does not preclude the justices, including kennedy, from sorting it out in deliberations.

Here is my take in layman's terms - wrong as that might be.

First, the constitutional clause authorizes regulation of commerce - even emerging comerce like say the internet or television in their infancies. Well, the healthcare system exists - check.

It is also important to note some existing aspects of that existing market. EVEYONE will use that market system - EVERYONE.

Public insurance (Medicare and Medicaid) and private insurance companies are the overwhelming current system devised by the free market to pay for those services. So, the government is not creating a new market or market concept for healthcare commerce. It is regulating the existing system (a point that the administration's attorney could never bring himself to state - but but Kagan, Sotomeyor and even Kennedy can and will).

Here is where I really have to draw on layman's terms. Congress' regulation of commerce should not be unreasonable or destructive of the market being regulated (very bad wording on my part).

The point is that healthcare commerce is not like the sale and purchase of wheat (which was often used). Wheat can be bought by individuals at retail outlets - and importantly decide to not buy at no inherent harm to the individual. Congress can and does regulate the sale of retail food and agricultural products. Bulk wheat is bought and sold on a wholesale basis - often through the futures market which is also regulated.

Now to the central issue.

Uninsured people or people otherwise without the means to pay for their health services already participate in healthcare commerce. Thus emergency room visits. these are already a part of this commerce. Further, government regulations require that they be served and that insurance costs be adjusted to cover these people as well as their customers.

This is nothing new. Again, over a couple hors, the administration's solicitor just couldn't bring himself to tell the justices that - regarless of how many times they encouraged him to do so.

It was maddening.

Another point is that the existing insurance system exists because people cannot reasonably be expected to have sufficient funds on hand at the time of need. Again, this solution is one created by free markets. The solicitor was able to screw up his courage to kind of make this point - kind of.

So, compelling someone to either buy insurance or pay a fine if they do not is well withing the existing system.

The conservatives also tried to make a weak point that forcing a man to buy insurance that covrs healthcare exclusive to women is unfair. Well, the solicitor freaked on that one. The answer is, "My family has a history of heart disease but not history of a plethora of other diiseases - but my insurance covers it." Whether that is fair or not, the real point is that is how the market already regulates it.

One last general comment: Congress and the executive branch are authorized to address any inequities through legislation and regulations.

So, let's not throw in the towel just yet.

[Bruce Adams]

Seems to me that the implicit argument Democrats can make is one of generational war. Old upon the young. Judges with their healthcare securely provided by government want to take away the program that assured that younger people could purchase insurance from a regulated, open market. Old, white Republicans want younger people to finance their government healthcare. Those same old, white Republicans don't want to invest in the infrastructure and sustainable energy sources that younger people will need to enjoy the economic prosperity that their elders expected as their birthright.