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June 18, 2012

Obama Administration Keeps Claiming It Expects ObamaCare To Be Upheld, But Keeps Telling Press It's Prepared For Adverse Rulings

Did Elena Kagan (or someone else) give them a heads up or not?

Hard to know, because it seems that either way, the Obama Administration would prepare for the law to be struck down, in whole or in part.

I think all we can say (or guess) is that Kagan didn't give them a heads up that it will be upheld in the entirety, or else they wouldn't have to keep talking about their back-up plan.

The White House says President Barack Obama is confident the whole law will be upheld when the court issues its ruling in the next week or two, but officials will be ready for any outcome.

"We do believe it's constitutional, and we ... hope and expect that's the decision the court will render," senior adviser David Plouffe said Sunday on ABC. "We obviously will be prepared for whatever decision the court renders." Administration officials have not wanted to discuss contingency plans to avoid creating the impression that the president is preparing for a high court rebuke.

Nevertheless, the Obama administration will move ahead to implement major elements of the law if the individual coverage requirement is struck down, two senior Democrats told The Associated Press. One is a leading Democrat familiar with the administration's thinking, the other a high-level Capitol Hill staffer. The two Democrats spoke on condition of anonymity to avoid appearing to be out of step with the administration's public stance.

If the Supreme Court strikes down just the mandate, they leave the system in even worst peril than they came to it -- now all insurers will be required to cover all enrollees, even those who apply for insurance on the day they get a bad prognosis, with no method (such as the mandate) insulating them from that system-gaming.

This is a case where the Supreme Court will be called into a role it is ill-equipped to serve (and forbidden, by the Constitution): Super Legislators, creating an entirely new law out of bits and pieces of what remains, picking and choosing what they think should stay or think should go.

They can't do that. They would be drafting the new law for a year, and they simply do not have the power of legislating. They also don't have the ability to craft such a project.

They must strike it down in whole and simply let the process begin anew, where it's supposed to begin, and end: In the Congress.

Short of that, they can impose a 90 day or 150 day clock: If a new law addressing these problems is not proposed by Congress and enacted into law (by the President), then the whole law must fall.

They cannot leave incoherent scraps of a dead law on the books, with Congress and the President gridlocked about the way to change it.

Ginsburg's Recent Comments:

Ginsburg noted that one ACA-related question the court must decide is whether the whole law must fall if the individual mandate is unconstitutional or may the mandate be chopped, like a head of broccoli, from the rest of it?

The court wouldn't have to reach that question (and would not reach it) if the threshold question -- is the mandate constitutional? -- were answered in the affirmative.

But that could just be a big head fake.

But then, why head fake? It's her job to not speak of the Court's ruling until it's announced; it's not her job to affirmatively fool people.

She's not George R. R. Martin. She's not supposed to be going for surprise twists.

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posted by Ace at 08:01 PM

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