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Desperation
February 29, 2012
If this article has it right, the Justice Department lawyers are really reaching.
Implications of ObamaCare being struck down?
I say it energizes liberal voters, because they’d be upset at the Supreme Court.
I’m not so sure about that, particularly in regards to precedent, which the justices are supposed to take seriously, and tends to support the individual mandate.
As I said before, I think that it’s unconstitutional, but what I think is immaterial. The legislative and judicial history of the last eighty years suggests that not only will it be upheld, but that it probably should be. If I were to guess, I’d say that pretty much everyone will wind up agreeing that the current case stands on whether Wickard v. Filburn should be overturned. If ol’ Roscoe’s growing wheat not for market impacts interstate commerce, it’s hard to argue that not buying health insurance doesn’t.
Of course, that depends entirely if the decision is entirely made on very narrow Commerce Clause grounds. And it’s very hard to argue that health insurance doesn’t “substantially affect interstate commerce,” since the insurers enjoy an antitrust exemption for that very reason.
I’m inclined to think that the Affordable Care Act should be struck drown. But I have a hard time seeing how that happens without destroying most post-Wickard congressional action and judicial precedent. I also don’t see the Court doing something like that lightly.
Pointing out Raich to Scalia is pretty smart, which is why I’ve been doing it for two years now. It’s even smarter when you understand that Nino sometimes rules in ways that he’d rather not, most notably in Texas v. Johnson. If the government can get Scalia to concur with – or even writing the majority opinion – upholding the mandate, it’s difficult to imagine the Tea-Party-types going apeshit.
Going for Kennedy is what everybody expects Holder to do. Arguing to Roberts and Scalia is actually much smarter than I gave him credit for. If one or two of the hard-core conservatives vote to affirm, Republicans have a hard time arguing for repeal in the fall. Not impossible, mind you, but hard.
But you’re right about one thing. If the law is struck-down, Obama’s field becomes much broader. Not only can he run a Truman campaign against a “do-nothing Congress”, he can open up a populist front against an “activist court.” God knows, he’s got boatloads of precedent on his side.
That feeds nicely into his “changing Washington” narrative quite nicely, and would almost certainly re-elect him with the most liberal mandate in American history, especially against a candidate as weak as Romney.
I’d be very surprised if they were not looking to which conservative justices to peel off. It for darn sure isn’t going to be Thomas, and almost as darn sure not Alito. That leaves Kennedy, Scalia and Roberts. Convince one and they win. The Politico article IMO sensationalizes this. It’s just good lawyering to think carefully about how to appeal to each justice. If they aren’t thinking about that, what are they doing all day?