Thursday, March 29, 2012

Obama and the Supremes

This is a political post.

My conservative FB friend seems excited that his insurance premiums are about to go up and he can go back to be being denied for insurance because of a cold sore in the future, what with the constitutionality of Obamacare being debated in the Supreme Court. In an extra hours session of oral arguments, the best points were be put forth by the brightest minds both sides can muster (well, the best the conservatives could muster, the Administration's guy shanked it) in front of America's council of wise men, er, the eight justices. Yes, there are nine justices, but in my opinion Clarence Thomas doesn't count because because he's already indicated he doesn't listen to oral arguments (he thinks the brief is enough) and because of that idea he doesn't ask questions during these sessions. In like six or seven years. Plus, he always votes conservative, so it's almost a "why bother?" situation.

But this year the conservative court is all for Obama. They can give him the election. All they have to do is decide that the Individual Mandate part of the Affordable Care Act is unconstitutional. Or not.

Wait what?

The Supreme Court is facing a public perception problem. After the disastrous Citizen United decision which basically put the election process up for the highest bidder, accelerating this country's pace to a kleptocracy, this third leg of government has a higher profile than ever. Supreme Court arguments don't usually get the kind of coverage we'd normally accord to NFL Playoff game. The Supremes have boxed themselves into a corner. Their last few decisions have communicated the idea that the court is "out of touch" or perhaps too partisan. The prohibition against "pre-existing conditions" and other parts of the law are very popular. But the key to making it all work, the Individual Mandate is not, at least among conservatives. Another ruling against what are perceived as the common interests of the general population - akin to money equals speech, corporations are people - only takes us further down a dark and twisted road.

That the mandate is clearly constitutional is beside the point. The Constitution gives Congress the power to regulate commerce among the states. This is clear. Health care, as our conservative friends like to point out, is nearly one sixth of the economy, so it qualifies as such commerce. And the court is firmly in the corner that if Congress can regulate the commerce, it make laws to make that regulation possible. And when I say "the court" I mean conservative Justice and everyone's favorite constitutional originalist, one Antonin Scalia. He actually said so in a court brief. Well talking about something else, but you can see how this should apply here.

But, all this is moot, because, as I learned in my law school class from Professor Segall, the court really isn't a court. They don't even have to pay attention to ethical behavior.

Strike down the Act, Obama gets re-elected. Uphold the Act, Obama gets re-elected. He's got it both ways. Why?

If the Court strikes down the Act, or weakens it to the point of ineffectiveness by severing the Mandate portion, the argument becomes we need to replace these justices, they're old, out of touch and are obviously ideologically tainted. And the only way to get new justices is keep Obama in office and pray the Justices Thomas and or Scalia wake up one morning and decide they've had enough and move to Fiji to sell timeshares. Or take up professional poker. A loss here will only complete the narrative that has been just under the radar for the past two years: the President is fighting the very well entrenched establishment that has joined forces with the fringe thinkers, and he still needs your help. Because after this and Citizens, a thinking liberal can raise the specter of a reversal of Roe v. Wade...and that's the real third rail of American jurisprudence.

Now, if the Court upholds the Act, Obama's signature legislation becomes he centerpiece his re-election campaign's "It only gets better from here" idealism. The we've only started we can keep going if you give me more time type of thing. That and it looks like oil prices might come down and suddenly, well then the problems his enemies are throwing at him go back to the soul of America, the most specious argument one can give right now.

Damned if you do. Damned if you don't. It's just a thought. From the folks at Lowcountry DTUD & BBQ.

Ain't American politics grand.

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