As the Dust Settles . . .
posted by Gerard Magliocca
More thoughts (Next week I’ll put together a bigger post on where the Health Care Cases leave us.)
1. Yesterday was probably bad news for those hoping for “liberal” rulings from the Court on voting rights and affirmative action next year. Chief Justice Roberts is (at least for a while) bulletproof and need not be concerned with accusations of partisanship. (And on the Voting Rights Act, the Court has already bent over backwards once to save the statute once.) Now you might think that this is a price worth paying to save the Affordable Care Act, but that’s another story.
2. The Chief Justice’s rationale that the individual mandate is a tax means that it can be repealed with just fifty votes in the Senate (under the reconciliation rules with a Republican VP) rather than the normal sixty.
3. When the Supreme Court struck down the National Industrial Recovery Act in 1935, most people saw that as a big setback for FDR. Others, though, concluded that the Justices did him a favor by killing an unpopular (and poorly designed) law. Here the opposite could be true. Upholding the Affordable Care Act could end up hurting the President’s chances of being reelected in the Fall because it is not popular and the White House cannot use the Court as a piñata. Just food for thought.
June 29, 2012 at 11:16 am
Posted in: Supreme Court
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Responses (4)
Howard Wasserman - June 29, 2012 at 11:31 am
With respect to # 3: The problem is that, even if ACA had been struck down and Obama could successfully run against the Court, he is not going to be reelected along with a majority in the House and a 60-vote majority in the Senate. So Roosevelt got other chances to replace the NIA, given the overall politics of the day, as well as prevailing Senate rules. That is not happening now, no matter what.
Michael Teter - June 29, 2012 at 11:54 am
With respect to #2: Wouldn’t the Byrd rule affect Senate Republicans’ ability to use reconciliation to eliminate the “tax”? At the very least, they’d have to offset the lost revenue within the same bill (assuming they wouldn’t sunset the elimination).
I agree, also, with Howard’s point. I’d add that I think we should wait to gauge the unpopularity of the law for a few weeks. First, a significant portion of those who didn’t like the law said that it wasn’t progressive enough. Given that many thought the law was dead, those individuals might appreciate it’s accomplishments more now. Either way, they’re not likely to support Romney because of the ACA. Second, I wouldn’t be surprised to see a big jump in popularity because of the ruling (people like winners — the law’s a winner), the coverage around the law, the growing discussion of its more popular features, and the fact that millions of Americans will receive a total of $1.1 billion in rebates from insurers because of the law’s requirement that companies spend 80% of premiums on actual health care.
Joe - June 29, 2012 at 4:32 pm
As to #3, “the law” might be unpopular, particularly given people don’t understand it,* but chunks of the actual provisions are. Don’t think the USSC overturning a seminal piece of legislation he supported would have helped much either. It would further the “he’s a failure” meme.
I didn’t hope Roberts would vote for AA though voting rights is somewhat more hazy. The optimist can say just as well that Kennedy wants to show he is not a “wingnut” and look reasonable there. More likely on voting though he keeps on saying he is okay with some race conscious programs though he never seems to actually uphold any accept in perhaps one districting case.
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* Even the headnotes of the opinion at one point notes “The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance.” But, of course, and it suggests so earlier, you need not “purchase” it since government insurance or getting it via a spouse or parent is acceptable.
George Conk - June 30, 2012 at 12:19 am
You assert that the ACA is an “unpopular (and poorly designed) law. Here the opposite could be true. Upholding the Affordable Care Act could end up hurting the President’s chances of being reelected in the Fall because it is not popular and the White House cannot use the Court as a piñata.”
The ACA has substantial popular support – especially among those who voted for Obama. And the administration has four more months to explain what it has accomplished and successfully defended. The opinions criticizing it by both Roberts and the dissenters summarize the ACA’s structure quite concisely. That is a sign of good design.
There is no historical evidence to support the notion that a President could gain by “us[ing] the Court as a pinata”. Losing is bad and winning is good. But CJ Roberts did avoid a lose-lose result by protecting the Court, leaving the policy dispute to the electorate which will decide it in less than five months. The price is that he had to allow Obama and the Democratic Congress the win they earned at the ballot box.
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