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« Politico In Full Spin Mode: Whether ObamaCare Is Upheld Or Struck Down, It's Bad for the GOP and Mitt Romney | Main | Retraction: Ginsberg's Comments Do Not Tip Her Hand »
June 27, 2012

Even More Fun From Politico: Democrats Warn -- The Very Worst Thing The Right-Wing Supreme Court Could Possibly Do Would Be To Issue a 5-4 Decision Overturning ObamaCare

No link; screw 'em.

Democrats to SCOTUS: Don't even think about it

A bit late in the game for "warnings," isn't it? Dudes, the opinion was at the printer days ago. The conference vote was like two months ago. The opinions were finished, edited, and proofed like three weeks ago.


“Probably the worst outcome we could see is a 5-4 decision,” said Democratic Caucus Vice Chairman Xavier Becerra (D-Calif.). “I think that would go a long way to confirming this growing belief in the gut of the American people that the Supreme Court no longer cares so much about the constitution; it cares more about politics.”

For months, party leaders have publicly insisted that the court would uphold the law in its entirety. But now Democrats are shifting gears, warning the public of what would be lost if the court strikes it down.

Notice the shift. I mentioned this yesterday, with Obama making the same tactical shift -- laying down a campaign theme of running against a supposedly politicized, radical Supreme Court.

If Democrats are saying "the worst thing" would be a 5-4 law voiding the entirety of the law-- including all those supposedly good things, like insurance for "children" and closing the donut hole -- do you get why I am suspecting that maybe "the worst thing" is precisely the thing that's happened?

Earlier I speculated, meekly, that maybe we'd have 7-2 in favor of voiding the mandate itself, with only a 5-4 decision in favor of voiding the entirety of the law.

That was a bit of speculation based on Ginsberg's statement that severability was the name of the game. Perhaps there was a larger minority to strike the mandate, with the real battle, the contentiously close one, over full void or partial void.

That was speculation.

But notice how Democratic talking points are aligning to shift into that posture -- to not contest the mandate ruling so much, but a 5-4 ruling for a complete overturn, about the donut hole and such things.

I checked my old blogging on this issue. This was from the day after oral arguments on ObamaCare, I think specifically about severability.

"One way or another, Congress will have to revisit it in toto," said Justice Antonin Scalia.

Agreeing, Justice Anthony Kennedy said it would be an "extreme proposition" to allow the various insurance regulations to stand after the mandate was struck down.

Meanwhile, the court's liberal justices argued for restraint. Justice Ruth Bader Ginsburg said the court should do a "salvage job," not undertake a “wrecking operation." But she looked to be out-voted.

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. said they shared the view of Scalia and Kennedy that the law should stand or fall in total. Along with Justice Clarence Thomas, they would have a majority to strike down the entire statute as unconstitutional.

I'd forgotten that -- Kennedy thought that if parts of the law were going down, it ought to all go down.

Let me quote Ginsberg again. From Politico, June 15. Just, what, twelve days ago?

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?”

Must decide.

The court has no reason to even reach that question if the Mandate (or Medicaid expansion) is upheld.

That is a question that is only reached if a majority finds one or more provisions of ObamaCare unconstitutional. Courts do not decide hypothetical, or moot, questions.

If ObamaCare is constitutional as written, there is no question of severability to be discussed at all.

Either Ginsberg is lying here -- deliberately putting out disinformation -- or the court decided that the mandate is unconstitutional, and the big question is "What stands or falls, given that?"

Now, it's possible there's a split decision, of course. Some kind of 7-2 against the mandate, and 5-4 to keep the bulk of ObamaCare (or 5-4 to get rid of all it).

But given that Kennedy -- the suspected flip-flopping faint-heart -- seemed to be of the mind that if one part of a comprehensive, complicated, intertwined scheme should fall, it all must fall -- it sure does seem to me we're talking about a complete overturn.

7-2 to void the mandate, 5-4 to overturn the law completely.

People fall in love with their own predictions. I'm now doing that. And I'm finding, as people do, only evidence to support my new, outta-my-ass prediction.


But be that as it may: I have convinced myself.

The main question is not about the mandate. That is decided. It's unconstitutional, and there are more than five conservative votes for that proposition.

Thus, the political tactical shift here is on to the question of whether those right-wingers should have voided it all, including the wonderful parts of it, like closing the donut hole.

I may be crazy, but what the hell. I only have to be crazy for 13 1/2 more hours until we find out if I'm crazy or so sane you can't even stand it.

The Problem With My Prediction: My prediction explains all the evidence. All of the evidence is, at least, not contrary to my prediction.

The problem is, I can't exclude other possibilities that also fit all the evidence. Which is what you really have to do to be confident of a conclusion -- not just prove that your solution fits the pieces of the puzzle, but that no other solution fits as well.

So, this is half baked. My prediction does fit -- but others do too.

But Ginsberg's quote is potent. Unless she's lying to the public -- which is not part of her job; secrecy does not require disinformation through affirmative deception -- then she's saying the Big Question is severablility.

Alternately: Perhaps 5-4 against the mandate, but then 6-3 the other way, on finding that most of the law can survive.

That would explain Democrats shifting the talking points to those bad 5-4 decisions. 5-4, horribly partisan. 6-3, perfectly awesomesauce.

And in this telling: Ginsberg would have stressed that part of the ruling because that's the part she won on. She didn't talk about the part she lost, but rather the part she won.

Byron York: Why Is Obama Now Only Pimping The Small-Bore Initiatives In ObamaCare? Good question, thanks for asking it.

During the run-up to passage of the national health care law, there was a furious debate among Democrats over whether President Obama should pursue a far-reaching, universal-coverage plan, or whether he should accept a series of piecemeal reforms that would extend coverage to some, but not all, Americans who don’t have health insurance.

Obama chose to go big, and he won. But now, as Obamacare hangs in the balance before the Supreme Court, the president is defending his signature achievement as if it were the set of smaller, piecemeal reforms that he once rejected.

In his recent campaign appearances, Obama has defended Obamacare for its ban on insurance companies denying coverage on the basis of pre-existing conditions; for its provision to allow adult children to stay on their parents’ plan until age 26; and for its expansion of prescription drug coverage. Each of those measures, Obama says, was “the right thing to do.” Only once in his most recent appearances has Obama even mentioned the main feature of Obamacare, that is, its scheme to extend health care coverage to more than 30 million currently-uncovered Americans.

Mandate out, so now stress the surviving parts of the law? Or the parts that didn't survive, but which are politically popular, and hence can be used in a campaign?

The unpopular mandate can't be used in a campaign, after all.

digg this
posted by Ace at 08:43 PM

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