Balkinization: There is a Great Disturbance in the Force

There is a Great Disturbance in the Force

Gerard N. Magliocca

You know that things are going poorly for the Obama Administration when the Solicitor General is being mocked on YouTube. I thought I would add two points about where this runaway train may be heading.

First, there is a chance (small though it may be), that this could end up like NAMUNDO. After the oral argument in that case, it looked like there were five votes to knock out the key provision of the Voting Rights Act. But the Court blinked. The same thing could happen here, since the Anti-Tax Injunction Act gives the Justices an escape route. The difference, of course, is the the VRA has broad bipartisan support and the Affordable Care Act does not.

Let's assume, though, that the Court does invalidate the Act. What would the political implications of this opinion be? When the Court struck down the federal income tax statute in 1895 under similar circumstances, the chief beneficiary was the sponsor of the unconstitutional bill, William Jennings Bryan. In this case, I wonder how such a decision might affect Mitt Romney's prospects if he is still short of a majority of delegates at the end of June. I would not presume to guess, for the precedents show that when the Court starts lobbing constitutional hand grenades into the presidential campaign, all bets are off.

Posted 9:27 AM by Gerard N. Magliocca [link]

Comments:

Let's assume, though, that the Court does invalidate the Act. What would the political implications of this opinion be? When the Court struck down the federal income tax statute in 1895 under similar circumstances, the chief beneficiary was the sponsor of the unconstitutional bill, William Jennings Bryan. In this case, I wonder how such a decision might affect Mitt Romney's prospects if he is still short of a majority of delegates at the end of June. I would not presume to guess, for the precedents show that when the Court starts lobbing constitutional hand grenades into the presidential campaign, all bets are off."

All bets are off indeed.

The Court has not stricken any substantive economic legislation for three quarters of a century and, unlike Obamacare, the New Deal legislation enjoyed popular support. We have no modern precedent for the current situation.

I would suspect that Romney is praying for the Court to strike down Obamacare. Without having to campaign on repealing Obamacare, Romney no longer has to answer for his own albatross - Romneycare - and can instead concentrate on his preferred topic of the economy. If Obama raises the issue, Romney can simply observe that Obamacare was illegal and Romneycare legal and that this is an issue best left to the states.

The wildcard is how this will change the likelihood that the left, center and right will vote in November.

Conservatives have been polling as very enthusiastic to vote, partially because of their opposition to Obamacare. If the Court removes the need to repeal Obamacare from the table, will that enthusiasm flag?

Vis versa for the left.

More interestingly, Obamacare is perhaps the primary reason the center turned against the Dems in 2010. Will the center thaw toward Obama and the Dem Senate in 2012 with Obamacare off the table?

I suspect that with Obamacare off the table, nearly all of the focus will be on the economy and the economy will determine the election. I am unsure how this becomes a net benefit to incumbent Dems.

# posted by

Bart DePalma : 11:39 AM

When Republicans realize that a decision striking down the ACA means that their primary reform proposals for Social Security and Medicare (private accounts and the Ryan voucher plan, respectively) are also off the table once and for all, they will go bananas. No one seems to realize this yet except Brett Kavanaugh and David Frum.

# posted by

Steve M : 12:11 PM

The SG's argument demonstrates the need for health care reform. If only he had been able to get good preventative health care, he wouldn't have been coughing so much during the oral argument!

# posted by

mls : 12:15 PM

Steve, those Republican proposals aren't serious. They're the equivalent of the Republican health care law now known as Obamacare. The Rs put up plans for show, then turn against them the moment the Ds adopt them. The real goal is the same as it has always been: returning us to a pre-New Deal nation.

# posted by

Mark Field : 12:43 PM

Let's assume, though, that the Court does invalidate the Act. What would the political implications of this opinion be?

Depends on whether the entire Act is invalidated or just the individual mandate.

If the latter, an army of insurance industry lobbyists will descend upon Washington, screaming that the deal is off. Anyone who gets in their way will find out how law is made in our nation.

If the former, the industry will be satisfied, as it can go about business as usual. The cost of care will rise unchecked, industry CEOs will continue to do well, and rationing of care will continue. This will likely have little political effect, as Americans have proven remarkably easy to saddle with the resulting costs and ills.

Oh yes; if somehow no part of the Affordable Care Act is invalidated, we will go forward with a deeply flawed bill that is better than what we have now but far worse than what we could have had, and what civilized nations do for their citizens.

# posted by

jpk : 12:45 PM

Steve M said...

When Republicans realize that a decision striking down the ACA means that their primary reform proposals for Social Security and Medicare (private accounts and the Ryan voucher plan, respectively) are also off the table once and for all, they will go bananas. No one seems to realize this yet except Brett Kavanaugh and David Frum.

The Congress can spend tax money for private goods and services through its taxing and spending power. There is no commerce clause issue for SS and Medicare reform.

Indeed, libertarians and conservatives might want to consider a reform where we change Medicare from a government health insurance system to a private health insurance premium support and then extend Medicare to everyone. The left will get single payer and universal coverage and the right will get a genuine market system for health insurance.

# posted by

Bart DePalma : 1:07 PM

Oh? Is there a Downfall parody?

# posted by

Joe : 2:00 PM

somewhat lost in the history of namudno was that seven months after scotus issued the opinion, the city of austin quietly drafted a resolution dissolving the namudno district altogether. problem solved.

# posted by

JohnLopresti : 2:34 PM

Why is the ACA not analogous to a requirement of obtaining an auto insurance once one enters into the auto ownership market?

The only difference is that today the States regulate it, as opposed to the federal gov't. But plainly, if the States did not regulate it, the federal gov't may, under the commerce clause.

Here, once you are born, you enter into the healthcare market. So the federal gov't requires you to obtain an insurance for it. What's wrong with this argument??

# posted by

RationalLeft : 4:22 PM

The Congress can spend tax money for private goods and services through its taxing and spending power. There is no commerce clause issue for SS and Medicare reform.

Bart, do you even know what Bush's social security reform plan was?

# posted by

Dilan : 1:47 AM

This comment has been removed by the author.

# posted by

Unknown : 12:43 AM

Bay Area Lawyers

Great read..and even better comments..it's always nice to hear so many opinionated opinions! Keep up the great work everyone!

# posted by

Unknown : 12:45 AM