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.