With the Supreme Court deciding tomorrow on the constitutionality of parts and the whole of the Patient Protection & Affordable Care Act (PPACA), the political world is switching from tense to excited to nervous on what seems to be an hourly basis. The Washington Post’s Ezra Klein is not-so-subtly undermining the legitimacy of overturning the PPACA, Real Clear Politics’ Sean Trende writes that the entire health care law is in jeopardy based largely upon his expectation that Chief Justice Roberts will write the Court’s decision, and now Politico is reporting the health care industry and congressional Republicans are doing the political equivalent of biting their nails in anticipation.
I’m not a political prognosticator, nor any sort of law or SCOTUS expert. However, I would like to offer my thoughts on a few areas related to the health care law:
First, one of the main legal arguments for the individual mandate comes from Wickard v. Filburn, which was decided in 1942. In this case, farmer Roscoe Filburn was growing more wheat than government limits allowed. Despite his using it only for his own consumption, the Court decided his actions influenced interstate commerce, and thus Congress could regulate how much wheat he could grow.
As a conservative, the relevance of this case is two-fold: first and foremost, this case was decided wrongly. Second, the Court ruled against Filburn because of his actions and how they impacted interstate markets, not the lack of action the individual mandate targets.
Second, I wrote why I thought the bill should crash and burn related to its overall terrible policies on March 30, 2010. The second Politico article linked above explains how Republicans are strategizing not on what laws to pass to replace what provisions of the PPACA are overturned, but how to use the legislative procedure to garner support for the GOP’s strategic respect for process.
While I almost always wish conservatives could convince Republicans to be more aggressive in legislative approaches, this seems like a wise strategy on the part of Republicans. Little of substance and impact is going to go from the computers of conservatives through Congress, and certainly not through the White House. Rather than take the political risks associated with this kind of major, controversial, and unlikely-to-become-law legislation in an election year that has at least even odds of putting more Republicans in Congress and the White House, Republican leadership appears to want to wait until the cards are more in their favor in 2013. Of course, if this happens, conservatives should then push Republicans to pass market-oriented legislation immediately after the new Congress and President take office.
Additionally, the economy is the most important issue to most Americans this year, and looks to be a winner for Republicans as debt ceiling, taxes, spending reductions and fiscal year budget debates arrive. From a strictly strategic perspective, focusing on these debates is much better for congressional Republicans.
Third, the first Politico link above describes how the insurance industry is concerned about the wide variances tomorrow could bring from the Court. To which I join The Washington Examiner’s Timothy Carney from August 2009 in having no sympathy for the insurance industry and its manipulation of the levers of power in Washington.
Fourth, Klein’s posts above, and others he and liberals have written in recent weeks and months, are surprisingly vitriolic and seem to be based around one idea: if the Court overturns the PPACA, the opportunity has arisen to delegitimize the entire Court. This is very much unlike conservatives, whose media strategy seems much more subdued. I suspect a majority of conservatives would publicly acknowledge the Court disagrees with them on certain aspects of the PPACA and move once again to overturn the law legislatively without personally attacking the Court.
Fifth, while I have no inside information on which way the Court is going to go tomorrow on any of the several angles it is looking at. I think the individual mandate has a solid chance of going down – despite Klein’s very flawed comparisons, quoting AWL’s Eric Spiegelman, between a militia-related mandate and a ship owner requirement for employees. After all, the individual mandate requires a fine or purchase from a private company in order to breathe in America, which the ship owner requirement does not. The militia mandate wasn’t even done under the Commerce Clause, which Klein acknowledges and promptly ignores.
Related, the mandate violates the ability of Americans to sign contracts under free will. Since when is a mandate that essentially puts a government gun to the head of every citizen allowing free will and the freedom Americans have under traditional and constitutional contract law?
Anyway, those are my semi-random thoughts on a few things related to the Court’s decision tomorrow. I used to have more thoughts – a former co-worker is a 2011 Harvard Law graduate who wrote part of one of the arguments against the PPACA – but I’m a little rusty on some of the technical aspects of the PPACA and related arguments these days.
[Originally published at Race42012.com]