In a stunning reversal of strategy, this past week the Obama administration changed its health care law strategy by asking the United States Supreme Court to agree to hear the challenge to its constitutionality sooner rather than later. Up until now, the strategy had been stall and delay. The administration believed that a delay in the decision to possibly late 2013 would allow it to get by the election before implementation of its provisions, plus allow promulgation of the associated regulations making it difficult for the court to overturn Obamacare. Now it is expected the Supreme Court will issue a decision on Obamacare around June of next year, just in time for the election.
There have been three appellate hearing on the matter. The 6th Circuit in Ohio ruled 2-1 in favor of the law. The 11th Circuit in Atlanta ruled 2-1 against the law. The 4th Circuit in Virginia refused to hear the case stating that the parties had no standing to challenge it because it didn’t take effect to 2014. It took no position on its constitutionality or lack thereof. The Virginia and Ohio decision were straight party line. The fly in the ointment for Obama was the Atlanta decision where a Clinton appointee sided on the side of unconstitutionality.
Originally the administration indicated it would appeal the Atlanta decision to the entire panel of 11th Circuit judges. There are eleven of them. But they counted up the votes, and decided they couldn’t win there, and it would actually bolster the opposition challenging the law. Those of you who followed Bush v Gore in 2000 should feel right at home at the 11th Circuit, which helped Bush be declared the winner of the hotly contested Florida primary.
The Supreme Court is a center right court, with Justice Kennedy being the swing vote between the four liberal justices and the four conservative justices. The issue is simple, can the United States government force a citizen to buy a product it does not want while outlawing all other reasonable alternatives. The liberals have gone orgasmic claiming the Commerce Clause of the Constitution has expanded to such a point that government does have the authority. Those opposing state that if this law stands, the government can force individuals to buy or not buy anything if it serves the “social good”, whatever that means. My money is on the opposition.
This is the big enchilada for Obama. All other issues pale in comparison to his administration’s signature piece of legislation. Everything else he has done is haunted by the shadow of this 2400 page disaster which sets up a bureaucracy the likes of which this country has never seen before, enforced by the power of the Internal Revenue Service.
Obama’s supporters claim this is no different than Social Security and Medicare. They are wrong. In those programs, there was a benefit for everyone where there was none. In Obamacare, there are winners and losers. Most of the country has good health care plans and ends up at the losing end of the stick, and they are unhappy. At the height of the debate, 75% of Americans opposed it. Today, it is around 60%.
Obama’s people believe that it will be a political boon to the President if the law is upheld. And if the law is defeated, it would rally his base to re-elect him in order to make sure the next Supreme Court appointee will be liberal, and shift the balance on the court.
That is a bonehead position, and they are wrong. If the law is upheld, the right will rise up and show up at the polls unlike anything this country has seen before to politically get rid of it. If the law is overturned, the right will be celebrating in the streets, and still show up in droves to get rid of Obama.
One last thing!!! Obama shouldn’t be too sure to count on at least four votes in the Supreme Court. At the end of the day, these folks are independent lawyers and judges. Political leanings are one thing, but they also are trained to enforce and interpret the law according to the Constitution. They don’t live in a vacuum, and are well aware of the problems in the country and the political unpopularity of Obamacare. You may see a 6-3 decision, or even a 7-2 decision against the law. One of my friends who is the most liberal person I know told me that he admires the tea party. I asked him why. He said that there is very little difference between progressive Democrats and libertarian Republicans. They wanted the government out of their lives in the era of the 60’s protests, and they want the government out of their lives now.
And of course there was that little matter of the President of the United States dissing the Supreme Court on national television at a State of the Union Address no less. As they say….what goes around, comes around. It’s not nice to fool Mother Nature, or the Supreme Court. Hi boys...good to see you. Make some arguments.
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