We could get the Supreme Court’s ruling on the Affordable Care Act cases tomorrow, although as Adam Liptak reports in the New York Times, it seems more likely that it will be handed down later in the week. It’s entirely possible, of course, that the Court will uphold the Constitutionality of the law itself and of the individual mandate. However, with Supreme Court observers, including former law clerks who probably know the Justices best, predicting that at the very least the mandate will be going down, the White House is bracing for what could be a big defeat:
Late on Tuesday, March 27, halfway around the world, President Obama began one of the most suspenseful waits in recent presidential history.
After a blur of nuclear security meetings in South Korea, Mr. Obama settled into the Air Force One conference room to read a summary aides had written of that day’s arguments before the Supreme Court back in Washington. The justices had asked deeply skeptical questions about his health care law.
Mr. Obama’s most profound policy achievement was at much higher risk of defeat than his aides had expected, vulnerable to being erased by the margin of a single justice’s vote.
Since then, Mr. Obama and the White House have put on brave faces, insisting that the law and the mandate at its center will be upheld when the court rules this month. In private conversations, they predict that the bulk of the law will survive even if the mandate requiring Americans to buy health insurance does not.
But even if the White House is a fortress of message discipline, it cannot disguise the potential heartbreak for Mr. Obama, who managed to achieve a decades-old Democratic dream despite long odds and at steep cost.
If he loses both his law and re-election, many will conclude “that he bet on his major reform, and the Supreme Court defeated it, and he lost his hold on the presidency,” Robert Dallek, the presidential historian, said in an interview.
On the day the ruling comes out, one Obama adviser joked, “I might have to clean out my sock drawer.”
In grappling with what the court may do, Mr. Obama and his advisers now appear to be far past the denial stage (when they dismissed constitutional challenges) but nowhere near acceptance (they still believe the law will be upheld.) Instead, they have quietly entered a surprising new state that might be called Learning to Live Without Universal Coverage.
Former advisers are emphasizing the many aspects of the bill that are not connected to the mandate, like the subsidies to buy insurance. Some aides even argue privately that losing the mandate could be a political boon, because it would rob Republicans of their core complaint against the law.
But that position is uncomfortable for a deeper reason, one that goes to the core of who Mr. Obama wanted to be as president. Earlier in his term, he refused every chance to settle for the more limited health care overhaul that the Supreme Court may now effectively deliver, making epic sacrifices to win something far broader.
Part of the problem that the White House, along with Congressional Democrats and other supporters of the law are facing, is that they were slow to grasp the fact that the law was actually vulnerable. On some level, perhaps, that’s understandable given the fact that the Supreme Court has, ever since the days of Wickard v. Filburn been largely deferential to Congress with it comes to assertions of power under the Commerce Clause. In that period, the Court only struck down Acts of Congress based upon that Constitutional power two times. In United States v. Morrison, the Court determined that certain provisions of he Violence Against Women Act were unconstitutional because they were not a valid exercise of Congressional power under either the Commerce Clause or the Equal Protection Clause (the only parts of the VAWA that remain in effect are those that provide funding to domestic violence shelters and programs to reduce domestic violence). In United States v. Lopez, the Court found the Gun Free School Zones Act unconstitutional because it was not authorized under the Commerce Clause or any other portion of Article I, Section 8. However, the court’s most recent Commerce Clause case, Gonzalez v. Raich, seemed to suggest that the Court was only willing to go so far in reasserting the limiting principles of the Commerce Clause. In that case, the Court rejected a challenge to Federal prosecutions of California medical marijuana growers on the ground that combating illegal drugs was a legitimate exercise of the commerce power even if said drugs were produced and consumed entirely within the borders of a single state. Justice Scalia wrote a concurrence in that case that seemed to suggest that he did not favor severely restricting Congressional power in this area, or revising old precedents. This is why most people who looked at the matter when the legal challenges first started, including yours truly as well as legal scholars who argued that the mandate was unconstitutional, that the odds of the Supreme Court striking down the law were exceedingly low.
Even as the legal challenges first started making their way through the Courts, this seemed to remain to be the case given the fact that most of the Federal Judges who heard these cases upheld the law against the Constitutional challenges being made. To a large degree, the District Court opinions in Virginia and Florida, along with the 11th Circuit Court of Appeals decision striking down the law were anomalies. It wasn’t until the end of oral argument in March that reality set in for many people, and now some legal scholars are criticizing the strategy that the government undertook in response to the challenges:
ome prominent legal scholars say a series of tactical decisions by President Obama’s legal team may have hurt the chances of saving his landmark health-care legislation from being gutted by Supreme Courtconservatives.
The warnings are a preview of the finger-pointing certain to ensue if the law is overturned. That could come sometime this week, when the justices are expected to decide on the constitutionality of the health-care law and its centerpiece provision mandating that all Americans purchase insurance or pay a penalty.
Obama, a former constitutional law instructor, and White House lawyers helped shape a legal strategy essentially portraying health care as a unique marketplace that Congress, under the Constitution’s interstate commerce clause, could regulate by imposing the requirement that consumers buy insurance before receiving treatment or pay a penalty.
Many liberals had criticized Solicitor General Donald B. Verrilli Jr. for a halting performance during the oral arguments on the case in March. But while Verrilli took the lead in shaping the government’s case, the broader strategy being questioned in some circles stemmed from a close partnership between the solicitor general’s office and the White House — with the strategy securing Obama’s approval.
The critics say the administration failed to fully develop arguments tailored to the court’s conservative members, who often look to the original intentions of the Founding Fathers for guidance. The critics represent a small but influential group of scholars who believe that this “originalist” thinking — typically dismissed by the left as outmoded and dangerous to modern precedents such as the Roe v. Wade abortion ruling — could be used effectively to defend liberal laws. Some say that Obama, who has criticized the originalist view, and lawyers in his administration may have decided for ideological reasons to steer clear of a conservative-seeming argument — a suggestion deemed absurd by administration officials.
To defend the health-care mandate, for instance, the government could have cited past measures such as a 1792 law signed by President George Washington requiring able-bodied men 18 or older to purchase a musket and ammunition. Several scholars, even former president Bill Clinton, have cited the 18th-century law as an example of an individual mandate that happened to be imposed by a president with impeccable originalist bona fides.
“It was an ace in the hole,” said Akhil Amar, a Yale University constitutional law scholar. “You’ve got George Washington signing a bill that helps you. Why wouldn’t you use it?”
Well, one reason you wouldn’t use it is because the “musket law,” as some came to describe it, was based on entirely different provision of the Constitution, specifically Article I, Section 8, Clauses 11, 15, and 16 which deal with the Federal Governments power to raise and support armies and call forward the state militas, which at the time were something that every able bodied while male was a member of under applicable state laws. Several supporters of the PPACA also referenced in their arguments a law passed by one of the early Congresses that required shipowners on U.S. flagged merchant vessels to pay a tax to cover medical and related expenses for the benefit of the seamen under their employ. However, as Eugene Volokh and David Kopel both noted in response to such argument, the statute in question was more of a payroll tax than an insurance mandate, and the fact that it only applied to a certain class of employees makes its applicability for a law with nationwide impact like the PPACA troublesome at best. This is the conclusion that the Administration ultimately came to as well, apparently, and I would argue it was a correct one. The likelihood that citing two obscure, largely inapplicable laws from the 1790s would have made a difference in the Supreme Court is pretty low.
Analysts have also questioned some of the strategic and tactical decisions that the Administration made as the Court wound its way through the Court system. They could have, for example, taken the position that the Anti-Injunction Act barred the Federal Courts from hearing challenges to the PPACA until someone had actually been assessed a tax penalty under the law. This could have delayed any lawsuits challenging the law until at least 2015. Given the incredulity with which Justices on both sides of the aisles greeted this argument when it was argued in March, though, its doubtful it would’ve made much of a difference and its possible that the government would have damaged its credibility with the Court in other aspects of the case by advancing an argument the Court seemed to find rather ridiculous. The Federal Government could have also sought to appeal the 11th Circuit case to the full Court, which would have made it very unlikely that the case would’ve made it to the Supreme Court before the election. The 11th Circuit could have, and probably would have, denied that request, however, and the case probably still would’ve gotten in front of the Supremes in time for a hearing and decision before the election.
Much of what’s going on here, of course, is pre-decision Monday Morning Quaterbacking. If it turns out that the Court hands the Administration a victory, then all of this criticism will melt away and it will be conservatives who will be pointing fingers and trying to figure out what, if anything, went wrong. In reality, I think its fairly clear that both sides argued these cases as well as they could be argued. It’s always possible for an attorney to look back on a case and wish he or she had taken a slightly different taken, believe me these are things that keep us attorneys up at night, and its very easy for people who aren’t actually involved in the case to tell people what they think should have been done (no doubt with them as lead counsel). In the end, though, you can only argue the case the way you argue it and leave it in the hands of the good Justices to come up with a ruling. By the end of this week, and possibly even tomorrow, we will find out what that ruling is, and then the finger pointing will be the only thing the talking heads are talking about.
