The Supreme Court on Monday delivered long-awaited decisions
on two landmark cases. And no, one of
them was not the Healthcare law; that one is expected Thursday.
The first was hardly unexpected. In a 5 to 4 vote that was strictly along
party lines, the Court overturned Montana’s challenge to its 2010 Citizens
United ruling. I predicted as much a
while back and quite frankly it was overly optimistic – perhaps naïve – for
progressives to believe the Court would ever reverse itself, even on a decision
so appallingly bad as this one. Old dogs
learn new tricks faster.
But the second decision was somewhat unexpected. In a 5 to 3 vote (Justice Kagan recused
herself due to a conflict of interest) the Court threw out three of the four provisions
in the Arizona immigration law, S.B. 1070.
The lone provision left standing was the “papers please” provision,
which basically permits police to check the immigration status of any one they
arrest. Fortunately this shouldn’t be
too much of a concern, since one of the key provisions that got tossed was the
one that allowed authorities to “make warrantless arrests of anyone they had probable cause to believe had
committed a deportable offense.” If you
can’t detain people for no good reason, then the issue of racial profiling is
significantly reduced. I say reduced and
not eliminated because even after they are arrested, Hispanics can still be
detained if they don’t have proof of citizenship. Overall, I'd say S.B. 1070 and Jan Brewer, legally speaking, got bitch slapped.
If you’re keeping
score that’s a split decision: one loss, one win. Thursday will undoubtedly be the tie
breaker, when the Court announces its ruling on the Affordable Care Act. To be honest, I’m not all that
optimistic. The only hope, as I see it,
is if the Court decides not to throw the baby out with the bathwater. In other words, if they toss the mandate they
might keep some of all of the rest of the statute.
The problem for
the Obama Administration and Democrats is that there is no severability
clause within the statute that would allow for part of the law to stand if
the mandate is stricken. In what looks
like a game of chicken for the ages, the writers of the legislation
deliberately chose not to include one, believing that the Supreme Court, if it
got that far, would never throw out an entire statute over one provision,
however polarizing.
That may be the
only hope of salvaging “Obamacare.”
Clearly the conservative justices during the oral phase showed no
inclination to parse through the massive legislation. If the gamble pays off on Thursday it will be
the grandest stroke of genius ever achieved legislatively; if it doesn’t, it’ll
be the biggest blunder of all time.
Either way, millions will be affected.
If the whole law
is struck down, then it’s back to square one. Obama can go back to the voters, who clearly
favor most of the provisions in it, and say it was the Republicans who took
away your healthcare and permitted the insurance industry to once more exclude
coverage based on pre-existing conditions.
However, if only the mandate is tossed, that’s a different story. Suggestions by some progressives that this
will allow for a revisit of the public option should stop smoking whatever it
is their smoking. Let’s get something
straight: If the ruling goes against the law, whether in toto or part, don’t
expect any legislative remedies for the remainder of the year, maybe longer. Republicans will do what they’ve pretty much
been doing for three and a half years: nothing.
And Democrats, afraid of a backlash, will sit on their hands, bite their
lips and bide their time.
They don’t call
it gridlock for nothing, you know.
Stay tuned.
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