Ahead Of Supreme Court Decision, Second Guessing Among ObamaCare Supporters
With the Supreme Court's decision imminent, many supporters of the PPACA are starting to second guess the Obama Administration's legal strategy.
We could get the Supreme Court’s ruling on the Affordable Care Act cases tomorrow, although as Adam Liptak reports in the New York Times, it seems more likely that it will be handed down later in the week. It’s entirely possible, of course, that the Court will uphold the Constitutionality of the law itself and of the individual mandate. However, with Supreme Court observers, including former law clerks who probably know the Justices best, predicting that at the very least the mandate will be going down, the White House is bracing for what could be a big defeat:
Late on Tuesday, March 27, halfway around the world, President Obama began one of the most suspenseful waits in recent presidential history.
After a blur of nuclear security meetings in South Korea, Mr. Obama settled into the Air Force One conference room to read a summary aides had written of that day’s arguments before the Supreme Court back in Washington. The justices had asked deeply skeptical questions about his health care law.
Mr. Obama’s most profound policy achievement was at much higher risk of defeat than his aides had expected, vulnerable to being erased by the margin of a single justice’s vote.
Since then, Mr. Obama and the White House have put on brave faces, insisting that the law and the mandate at its center will be upheld when the court rules this month. In private conversations, they predict that the bulk of the law will survive even if the mandate requiring Americans to buy health insurance does not.
But even if the White House is a fortress of message discipline, it cannot disguise the potential heartbreak for Mr. Obama, who managed to achieve a decades-old Democratic dream despite long odds and at steep cost.
If he loses both his law and re-election, many will conclude “that he bet on his major reform, and the Supreme Court defeated it, and he lost his hold on the presidency,” Robert Dallek, the presidential historian, said in an interview.
On the day the ruling comes out, one Obama adviser joked, “I might have to clean out my sock drawer.”
In grappling with what the court may do, Mr. Obama and his advisers now appear to be far past the denial stage (when they dismissed constitutional challenges) but nowhere near acceptance (they still believe the law will be upheld.) Instead, they have quietly entered a surprising new state that might be called Learning to Live Without Universal Coverage.
Former advisers are emphasizing the many aspects of the bill that are not connected to the mandate, like the subsidies to buy insurance. Some aides even argue privately that losing the mandate could be a political boon, because it would rob Republicans of their core complaint against the law.
But that position is uncomfortable for a deeper reason, one that goes to the core of who Mr. Obama wanted to be as president. Earlier in his term, he refused every chance to settle for the more limited health care overhaul that the Supreme Court may now effectively deliver, making epic sacrifices to win something far broader.
Part of the problem that the White House, along with Congressional Democrats and other supporters of the law are facing, is that they were slow to grasp the fact that the law was actually vulnerable. On some level, perhaps, that’s understandable given the fact that the Supreme Court has, ever since the days of Wickard v. Filburn been largely deferential to Congress with it comes to assertions of power under the Commerce Clause. In that period, the Court only struck down Acts of Congress based upon that Constitutional power two times. In United States v. Morrison, the Court determined that certain provisions of he Violence Against Women Act were unconstitutional because they were not a valid exercise of Congressional power under either the Commerce Clause or the Equal Protection Clause (the only parts of the VAWA that remain in effect are those that provide funding to domestic violence shelters and programs to reduce domestic violence). In United States v. Lopez, the Court found the Gun Free School Zones Act unconstitutional because it was not authorized under the Commerce Clause or any other portion of Article I, Section 8. However, the court’s most recent Commerce Clause case, Gonzalez v. Raich, seemed to suggest that the Court was only willing to go so far in reasserting the limiting principles of the Commerce Clause. In that case, the Court rejected a challenge to Federal prosecutions of California medical marijuana growers on the ground that combating illegal drugs was a legitimate exercise of the commerce power even if said drugs were produced and consumed entirely within the borders of a single state. Justice Scalia wrote a concurrence in that case that seemed to suggest that he did not favor severely restricting Congressional power in this area, or revising old precedents. This is why most people who looked at the matter when the legal challenges first started, including yours truly as well as legal scholars who argued that the mandate was unconstitutional, that the odds of the Supreme Court striking down the law were exceedingly low.
Even as the legal challenges first started making their way through the Courts, this seemed to remain to be the case given the fact that most of the Federal Judges who heard these cases upheld the law against the Constitutional challenges being made. To a large degree, the District Court opinions in Virginia and Florida, along with the 11th Circuit Court of Appeals decision striking down the law were anomalies. It wasn’t until the end of oral argument in March that reality set in for many people, and now some legal scholars are criticizing the strategy that the government undertook in response to the challenges:
ome prominent legal scholars say a series of tactical decisions by President Obama’s legal team may have hurt the chances of saving his landmark health-care legislation from being gutted by Supreme Courtconservatives.
The warnings are a preview of the finger-pointing certain to ensue if the law is overturned. That could come sometime this week, when the justices are expected to decide on the constitutionality of the health-care law and its centerpiece provision mandating that all Americans purchase insurance or pay a penalty.
Obama, a former constitutional law instructor, and White House lawyers helped shape a legal strategy essentially portraying health care as a unique marketplace that Congress, under the Constitution’s interstate commerce clause, could regulate by imposing the requirement that consumers buy insurance before receiving treatment or pay a penalty.
Many liberals had criticized Solicitor General Donald B. Verrilli Jr. for a halting performance during the oral arguments on the case in March. But while Verrilli took the lead in shaping the government’s case, the broader strategy being questioned in some circles stemmed from a close partnership between the solicitor general’s office and the White House — with the strategy securing Obama’s approval.
The critics say the administration failed to fully develop arguments tailored to the court’s conservative members, who often look to the original intentions of the Founding Fathers for guidance. The critics represent a small but influential group of scholars who believe that this “originalist” thinking — typically dismissed by the left as outmoded and dangerous to modern precedents such as the Roe v. Wade abortion ruling — could be used effectively to defend liberal laws. Some say that Obama, who has criticized the originalist view, and lawyers in his administration may have decided for ideological reasons to steer clear of a conservative-seeming argument — a suggestion deemed absurd by administration officials.
To defend the health-care mandate, for instance, the government could have cited past measures such as a 1792 law signed by President George Washington requiring able-bodied men 18 or older to purchase a musket and ammunition. Several scholars, even former president Bill Clinton, have cited the 18th-century law as an example of an individual mandate that happened to be imposed by a president with impeccable originalist bona fides.
“It was an ace in the hole,” said Akhil Amar, a Yale University constitutional law scholar. “You’ve got George Washington signing a bill that helps you. Why wouldn’t you use it?”
Well, one reason you wouldn’t use it is because the “musket law,” as some came to describe it, was based on entirely different provision of the Constitution, specifically Article I, Section 8, Clauses 11, 15, and 16 which deal with the Federal Governments power to raise and support armies and call forward the state militas, which at the time were something that every able bodied while male was a member of under applicable state laws. Several supporters of the PPACA also referenced in their arguments a law passed by one of the early Congresses that required shipowners on U.S. flagged merchant vessels to pay a tax to cover medical and related expenses for the benefit of the seamen under their employ. However, as Eugene Volokh and David Kopel both noted in response to such argument, the statute in question was more of a payroll tax than an insurance mandate, and the fact that it only applied to a certain class of employees makes its applicability for a law with nationwide impact like the PPACA troublesome at best. This is the conclusion that the Administration ultimately came to as well, apparently, and I would argue it was a correct one. The likelihood that citing two obscure, largely inapplicable laws from the 1790s would have made a difference in the Supreme Court is pretty low.
Analysts have also questioned some of the strategic and tactical decisions that the Administration made as the Court wound its way through the Court system. They could have, for example, taken the position that the Anti-Injunction Act barred the Federal Courts from hearing challenges to the PPACA until someone had actually been assessed a tax penalty under the law. This could have delayed any lawsuits challenging the law until at least 2015. Given the incredulity with which Justices on both sides of the aisles greeted this argument when it was argued in March, though, its doubtful it would’ve made much of a difference and its possible that the government would have damaged its credibility with the Court in other aspects of the case by advancing an argument the Court seemed to find rather ridiculous. The Federal Government could have also sought to appeal the 11th Circuit case to the full Court, which would have made it very unlikely that the case would’ve made it to the Supreme Court before the election. The 11th Circuit could have, and probably would have, denied that request, however, and the case probably still would’ve gotten in front of the Supremes in time for a hearing and decision before the election.
Much of what’s going on here, of course, is pre-decision Monday Morning Quaterbacking. If it turns out that the Court hands the Administration a victory, then all of this criticism will melt away and it will be conservatives who will be pointing fingers and trying to figure out what, if anything, went wrong. In reality, I think its fairly clear that both sides argued these cases as well as they could be argued. It’s always possible for an attorney to look back on a case and wish he or she had taken a slightly different taken, believe me these are things that keep us attorneys up at night, and its very easy for people who aren’t actually involved in the case to tell people what they think should have been done (no doubt with them as lead counsel). In the end, though, you can only argue the case the way you argue it and leave it in the hands of the good Justices to come up with a ruling. By the end of this week, and possibly even tomorrow, we will find out what that ruling is, and then the finger pointing will be the only thing the talking heads are talking about.
They were overconfident because ultra-conservative Fed/appeals court judge after ultra-conservative Fed/appeals court judge said that there was nothing in the constitution which prevents the mandate. And Scalia’s Raich v gonzo ruling would have suggested that he wouldn’t have opposed it either. If they rule against the mandate on commerce clause limitations, then they’re ruling against their past rulings. If they throw out the whole law, then Roberts especially is going against his past deference to the Gov on severability.
@Chad S:
They are the Supreme Court, they can do that. Appellate and District Court Judges cannot. Brown v. Board of Ed overruled Plessy. Lawrence v. Texas overruled Bowers v. Hardwick Was that a bad thing?
@Doug Mataconis: Except that it wasn’t the same justices making the pairs of decisions. Scalia wrote in Raich that “Congress may constitutionally regulate non-economic local activity as part of a more general regulation of interstate commerce”. Roberts asked the Obama admin about whether they wanted severability in a congressionally passed law even though the law didn’t contain a specific clause for it(and granted it in the decision). Thats the difference between your examples and this.
Thank god Social Security and Medicare did not have to go through a challenge before this Court.
Social Security and Medicare were passed in a bipartisan fashion. Obamacare was not. This obnoxiously large and mainly ‘unread’ bill was passed in a unilateral fashion the night before Christmas. It was ultimately a Grinch maneuve,r forced upon people and onto the states, which was met with immediate resistance in the form of Constitutional challenges.
It deserves to go down in flames and have a more bipartisan kind of health reform, much like the phoenix, arise from it’s ashes.
This morning I was discussing this very question with a dear old friend, a member of the American Health Lawyers Association, who was in town for their annual convention. The first question we should be asking ourselves: is a majority of this court likely to extend the Congress’s Commerce Clause powers farther? That’s what the PPACA does and how anyone can reasonably contend it doesn’t is surprising to me.
I will be very surprised if the answer to that question proves to be anything but “No”. At that point the question becomes how many of the justices believe the remainder of the Title 1 provisions can be maintained in the absence of the mandate.and whether the requirements placed on the states for changes to Medicaid meet constitutional muster.
Mostly I think we’re going to be tallying up which justices voted for what.
Well, we know what the GOP wants – health insurance for the healthy and wealthy – so this may be hard to accomplish.
@anjin-san:
No matter what you think the other side wants, the way the current ACA was passed was doomed from the start in ginning up resistance. No body likes to be pushed and bullied, whether it’s via politics or in the schoolyard. And, that is what the dems did with health care. They pulled out all the stops, promised things they couldn’t deliver, and then finally cranked it through on the eve of one of the biggest holidays, at the end of the year. Only social progressives would have enough hubris to condone the process, without even getting into the substance of the bill. If any other party had done the same thing, on a similarly controversial bill, they would have been howled out of office.
Wait a minute- “the way a bill was passed” somehow has some impact on the constitutionality of the bill? No one but a wingnut professor or two at volokh.com, where this argument against the ACA was made up out of thin air, thinks the law is unconstitutional. Now we’re looking to blame the coup taking place in the Supreme Court on “the way the bill was passed?”
We’ve gone down the wormhole.
No, of course not.
But, it does explain the fact that the PPACA has always been negatively viewed by the public
Here are some scattered health care decision readings from tea leaves and second thoughts, brought to you by this Powerline Blog piece.
Along with their look across the political spectrum is their own speculation about the legitimacy of this law:
@jan: The final vote on the bill was in the house on March 21st and Obama signed it 2 days later. That’s a month and a half before cinco de mayo, hardly “on the eve of”. You lie!
Doug, if we’re going to Monday-morning quarterback here, I have to ask … did the Obama administration ever articulate a limiting principle for Congress’s Commerce Clause power? IMO, that’s the most persuasive reason for the court to be skeptical of the individual mandate.
@John Cole:
“Wait a minute- “the way a bill was passed” somehow has some impact on the constitutionality of the bill?”
…..If you read the entire sentence, you wouldn’t be making such a connection. The lack of bi-partisan cooperation/collaboration in formulating this bill has led to the massive resistance following it’s unilateral passage by the democrats. As to whether or not it is deemed Constitutional, that remains to be the big question of the moment.
@jan: And when it was passed 3 months later in the Senate, what was the major problem there? Or is 3 months not long enough? Basically it doesn’t matter the actual process the bill went through. Anything less than a complete capitulation by the Democrats was doomed to fail period (basically the fate of any liberal legislation for the foreseeable future I imagine).
@Scott O.:
I lied?
Senate passes historic health care legislation
From the AP:
@jan: You mean to tell me that the Republicans held up the bill as long as possible when they could have been home getting ready to celebrate Jesus’s birthday? Why didn’t one or two of them agree to vote for cloture sooner?
@jan:
How do people rewrite history this easily and think they are making a point. This was the Republican plan. This was hatched at the Heritage foundation, and almost plagiarized from the Romney plan in Mass. You can’t get more “bi-partisan” than this- Democrats copied the plan the Republicans had been offering for decades.
Oh, I get it. You mean “bi-partisan” in that there weren’t enough Republican votes for it. Spare me. From day one, Republicans have declared total all out war on this President. They lied about what was in the bill, fomented massive protests, circulated talking points on how to lie at town halls and show down people, they worked in conjunction with wealthy outside interests to foment near riots, they spewed nonsense about death panels. If you are looking for blame on “how this bill was passed,” look to the GOP.
Because if you look at how Democrats behaved, you will see that it was the model of bipartisanship and restraint. The President ran on a platform of reforming health care. He was elected. Democrats and the President then spent the next near two years publicly legislating, negotiating with Republicans, working out the details, and doing so without any Republican support. They would get everything they wanted in negotiations, then vote against it anyway. The bill then passed the house with a majority, and then passed the Senate, even with their ridiculous new rules on what constitutes a majority. The President signed it.
That is how the process works, and nowhere can Democrats be faulted for the dishonest, disingenuous, and completely partisan manner the Republicans have behaved since day one.
Obamacare supporters; don’t give up the ship, sink with the darn thing
@John Cole:”No one but a wingnut professor or two at volokh.com, where this argument against the ACA was made up out of thin air, thinks the law is unconstitutional.
I don’t think its unconstitional, but this statement is completely idiotic.
@Scott O.: The final vote on the bill was in the house on March 21st and Obama signed it 2 days later. That’s a month and a half before cinco de mayo, hardly “on the eve of”. You lie!
“When there’s a bill that ends up on my desk as president, you the public will have five days to look online and find out what’s in it before I sign it, so that you know what your government’s doing.” — Senator Barack Obama.
Obama lied first and worse.
@jan:
Medicare in 1965:
Senate 70-24 with 6 not voting
For = 57D + 13R
No = 7D + 17R
House 307-116 with 10 not voting
For = 237D + 48R
No = 48D + 68R
Hardly bipartisan. It just looks that way compared to today’s cesspool.
The wild card here is that I don’t think Roberts want’s a 5-4 decision. I think it is taking so long is there is a lot of deal making going on.
And this is interesting:
Constitutional Experts: Mandate Should Be Upheld, But Likely Won’t Be
@jan- It took 13 months to pass. It was delayed fro months with the Gang of Six. Every bill needs 60 votes now. By your metric, they are all rammed through.
Steve
And what, pray tell, would a “bipartisan kind of health reform” look like? Indeed, if this law does go down, what exactly is the Republican alternative?
Except, of course, for the other fact that many of the individual parts of the PPACA are viewed quite favorably by the public…
@Ron Beasley:
I agree. I think they want to kill the mandate and leave the carcass for Congress to pick over.
Which is really pretty pathetic when you think about it.
@al-Ameda:
I’m not sure I agree with that take. I think Roberts is concerned about appearance. A high visibility case the goes against precedent determined by a 5-4 decision will only reinforce the idea that the court is political.
@Ron Beasley:
I think the only compromise the conservative majority will offer is to get rid of the mandate, and offer to let the rest of the ACA stand, as opposed to a ruling that the entire act is now invalid.
What other compromise could get anything other than a 5-4 conservative ruling?
@al-Ameda: I don’t think we really disagree on the likely outcome only the motivation. But the motivation I would guess has led to a game of chicken – will Roberts and Kennedy agree to uphold the entire thing to avoid a 5-4 decision or will one of the liberals give.
doug:
For a substantial number of people, it is “negatively viewed” because it doesn’t go far enough. Most of the surveys (especially Fox and Rasmussen, oddly enough) don’t bother asking about that. But some do, like this one (pdf):
Leave it as is: 19%
Change it so that it does MORE to change the health care system: 43%
Change it so that it does LESS to change the health care system: 10%
Repeal it completely: 26%
Yup, this definitely shows it is “negatively viewed:” only 19% say “leave it as is.” Trouble is, the “Change it so that it does MORE” group is four times bigger than the “Change it so that it does LESS” group. This poll is on the RCP list as 40/41 (favor/oppose). Which is misleading when you don’t bother to understand what’s behind “oppose.”
And the other key thing to notice is that only 26% want to “repeal it completely.” So if the GOP does “repeal it completely” and replace it with nothing else, they will have pleased just those 26%. In other words, the tea party crowd. Everyone else will be getting an outcome they say they don’t want.
Here’s another survey that tried to measure the nature (and not just the size) of the opposition. Look at item 20. 50% oppose the bill, but that breaks down into 35% who oppose it because it goes too far, and 13% who oppose it because it doesn’t go far enough. Which means you end up with this:
Oppose because it goes too far: 35%
Oppose because it doesn’t go far enough: 13%
Support: 45%
When you simplify that into oppose/support (which is what most polls do, and what RCP does), you get 48/45 (or 50/45, depending on how you handle the ‘don’t know/no opinion’ results). But that’s a distortion, because the “oppose because it doesn’t go far enough” group (13%, in this poll) is being put on the wrong side of the scale.
A good analysis of this issue is here.
Another good analysis was done by “[David] Hill … a pollster that has worked for Republican candidates and causes since 1984.” He explained how you’re fooling yourself: “Polls on ObamaCare mislead.” When you ask the question in a more detailed way, you find out that most people don’t want the law to be repealed and replaced with nothing:
So “negatively viewed by the public” includes a lot of people who view it negatively because it doesn’t go far enough. A lot of the people telling pollsters they want repeal are answering the question that way because they want the law replaced with something stronger. And that group is larger than the group which wants “outright repeal with no replacement.” That’s why Hill says this:
“Restoring the old system” is exactly what the GOP is trying to do, and they have hypnotized themselves with polling that doesn’t mean what they think it means. This question has been heavily polled by Rasmussen, and he never, ever provides this choice: ‘expanding the law.’ Only a few polls do offer that choice. But when you offer that choice, you find that it has a lot of support.
If the GOP wants to repeal it and replace it with something better, let’s see them do it. But if they repeal it and replace it with nothing, they’ll be pleasing only the tea party. Good luck with that.
@jan: May the health care bill be struck down in its completeness and may you and all your relations have pre-existing conditions and need to look for heath care insurance.
That’s the only way people like you will ever learn.
Doug, excellent piece. However, I’m a cynic by nature. I think you’re overthinking it and I think the fix was in a long time ago.
When I read that passage from Scalia’s book re : Wickard v Filburn, where he flip-flopped on something he has long supported (and is relevant to the Obamacare decision) based on nothing but “Oh hey, I’m really smart now”, then I knew he was a no vote, and only because it was a Democrat who passed it. Had Bush passed this bill, Scalia would have been all for it. This whole thing is about as cynical an exercise as I’ve ever seen.