No since denying the obvious; things are not looking good for the Obama Administration. If Tuesday’s oral arguments in front of the Supreme Court over the constitutionality of the Affordable Care Act’s individual mandate are any indication, we could be looking at the worst setback for a sitting president since FDR had six of his eight New Deal statutes overturned.
What was shaping up as pretty much of a slam dunk according to some legal experts is now no better than a 50/50 proposition. Of particular concern was the line and manner of questioning by “swing” justice Anthony Kennedy. You had the feeling this was going to be a long day when Kennedy asked, “Can you create commerce in order to regulate it?”
Of course that is the exact argument that the opponents of the healthcare law have been making for nearly two years and it didn’t help matters any that the justice the Administration was counting on to join in with the liberal contingent of the Court sounded some of the gravest concerns. It also didn’t help that Donald Verrilli, the solicitor general representing the Administration, seemed about as prepared for the onslaught of questioning as a frat student taking his midterms after an all-night binge.
How bad was Verrilli? Justices Breyer and Ginsburg did a better job of presenting the case for the mandate than the Administration’s own attorney, that’s how bad. Which begs the question, how could the Administration not be better prepared to argue the main legal issue involving its own signature piece of legislation? They knew this day was coming for well over a year. It is inexcusable to muff something this crucial, especially in light of the fact that the Court’s decision – expected in June – will play a pivotal role in the upcoming presidential election.
Frankly, I’ve felt for quite some time that the commerce clause argument was on shaky ground to begin with and it was a mistake for the Obama Administration to put all its eggs into that basket. Notwithstanding the decision last November to uphold the mandate by the U.S. Appeals Court for the District of Columbia Circuit – a conservative court that saw past politics – the simple and painfully obvious truth is that this court is clearly divided into ideological camps. The last two landmark cases – Citizens United v. Federal Election Commission and Bush v. Gore – were decided strictly along party lines. Expecting anything but partisan treatment of a provision in a law that contradicts an extremely narrow interpretation of the Constitution was the height of naiveté.
Actually the whole individual mandate was a quagmire from day one. Progressives hated it because it was a windfall for an insurance industry already rolling in dough; conservatives hated it because they saw it as an overreach of federal authority over what they viewed as the sovereignty of individual liberty – whatever the hell that means these days. It isn’t often that conservatives and liberals agree on anything, but when it comes to this issue, it’s as though they’re doing a conga dance.
By forgoing what would’ve been a spirited but worthwhile debate over the merits of a single-payer system, which might well have been the best and last chance to save Medicare, the President and congressional Democrats “settled” for a plan few if any like and many loathe. We will never know what might’ve happened had the Administration held firm for a single-payer – many political pundits have concluded that the votes were simply not there, even among Democrats – but it would’ve been a fight worth waging.
Now they are stuck defending the virtues of political expediency over ideals, and they are in for the battle of their lives against an opponent that took the opening they were given and pounced on it. It was as though the Administration loaded the gun and then handed it over to their foes and said, “Go ahead, pull the trigger.”
While defeat may not be inevitable – Kennedy may still come around and I wouldn’t count Roberts out – the lesson here is simple. If something is worth doing, it’s worth doing right. If the individual mandate does indeed get struck down, the whole law ostensibly goes out the window. One cannot survive without the other. And with no healthcare reform law, that means pre-existing conditions can once more be used as a bar against treatment and coverage of the sick, affecting potentially millions of Americans.
And that would be inexcusable.