Friday, March 30, 2012

Frank Rich: Why the Supreme Court Can Only Help Obama, E.J. Dionne: Activist Judges On Trial

From: [ 61/10691-why-the-supreme-court-can-only-help-obama

Frank Rich on the National Circus: Why the Supreme Court Can Only Help Obama

By Frank Rich

If the Supreme Court overturns Obamacare, how does Obama respond?

Just keep moving. The decision is scheduled to come down in June. The election will be more than four months away — an eternity in politics.

But everyone says the Affordable Care Act is Obama’s signature achievement so far. How can he just walk away?

He can take credit for the provisions that Americans love: coverage for the young up to age 26 on their parents’ policies; lowered drug costs for the elderly; and, most of all, the ban on insurance companies either raising premiums or denying coverage to those with preexisting conditions. He can also point out that the Romney- Ryan budget will maim Medicare, another hugely popular health- care provision created by Democrats.

The popular parts of the health-care law could be unsustainable if the Court strikes down the mandate, however. Premiums will skyrocket.

By then it will be 2014, and, as James Carville correctly pointed out this week, the GOP “will own the healthcare system for the foreseeable future.” The Democrats can heap the blame for rising costs and every other health-care ill on the Republicans, who to this day have not offered a plausible alternative to Obamacare. Indeed, Carville argues that a court decision against Obama “will be the best thing that has ever happened to the Democratic Party.” That’s hyperbole, but he’s onto something.

Then where does that leave Romney? Can he Etch A Sketch away from his own support of an individual mandate?

Rick Santorum is right about at least one thing: Romney is the worst possible Republican candidate to debate Obama about health care. If the mandate survives in court, and the GOP base goes ballistic, the Democrats can keep reminding voters that Romney was “the godfather” of the mandate (as David Plouffe put it last weekend) in Massachusetts and can keep replaying that “I like mandates” Romney clip from that 2008 GOP debate. But it gets even worse for Mitt. He revealed (in a Tuesday night interview with Jay Leno, yet) that he is even against the Obamacare provision favored by 85 percent of the public, according to a recent poll — the requirement that insurance companies cover those who are already sick. Here’s how Romney put it to Jay: “If they are 45 years old and they show up and say I want insurance because I have heart disease, it's like, hey guys — we can't play the game like that.” Turns out he has no more empathy for that middle-aged man with heart disease than he does for the workers he shredded in his lucrative games at Bain.

So who would a repeal of Obamacare hurt most?

The biggest victims will be the some 30 million Americans who have no health insurance. The rest of us, who one way or another will keep picking up the bill for their medical care, will also pay a price. In the political arena, the court’s decision, up or down, is a win-win for Obama and a lose-lose for Romney, who at this late date hasn’t figured out how to answer health-care questions on the Tonight Show, let alone in a debate with the president.

The Obama administration pushed to get this case on the docket before the election. Are they going to regret that?

For all the reasons above, no. It was a shrewd move. Whatever happens, it diffuses the issue well before November 6.


Activist Judges On Trial
March 28th, 2012 by E.J. Dionne

WASHINGTON — Three days of Supreme Court arguments over the health care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.

Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?

It fell to the court’s liberals — the so-called “judicial activists,” remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.

Justice Stephen Breyer noted that some of the issues raised by opponents of the law were about “the merits of the bill,” a proper concern of Congress, not the courts. And in arguing for restraint, Justice Sonia Sotomayor asked what was wrong with leaving as much discretion as possible “in the hands of the people who should be fixing this, not us.” It was nice to be reminded that we’re a democracy, not a judicial dictatorship.

The conservative justices were obsessed with weird hypotheticals. If the federal government could make you buy health insurance, might it require you to buy broccoli, health club memberships, cellphones, burial services and cars? All of which have nothing to do with an uninsured person getting expensive treatment that others — often taxpayers — have to pay for.

Liberals should learn from this display that there is no point in catering to today’s hard-line conservatives. The individual mandate was a conservative idea that President Obama adopted to preserve the private market in health insurance rather than move toward a government-financed single-payer system. What he got back from conservatives was not gratitude but charges of socialism — for adopting their own proposal.

The irony is that if the court’s conservatives overthrow the mandate, they will hasten the arrival of a more government-heavy system. Justice Anthony Kennedy even hinted that it might be more “honest” if government simply used “the tax power to raise revenue and to just have a national health service, single-payer.” Remember those words.

One of the most astonishing arguments came from Roberts, who spoke with alarm that people would be required to purchase coverage for issues they might never confront. He specifically cited “pediatric services” and “maternity services.”

Well, yes, men pay to cover maternity services while women pay for treating prostate problems. It’s called health insurance. Would it be better to segregate the insurance market along gender lines?

The court’s right-wing justices seemed to forget that the best argument for the individual mandate was made in 1989 by a respected conservative, the Heritage Foundation’s Stuart Butler.

“If a man is struck down by a heart attack in the street,” Butler said, “Americans will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services — even if that means more prudent citizens end up paying the tab. A mandate on individuals recognizes this implicit contract.”

Justice Antonin Scalia seemed to reject the sense of solidarity that Butler embraced. When Solicitor General Donald Verrilli explained that “we’ve obligated ourselves so that people get health care,” Scalia replied cooly: “Well, don’t obligate yourself to that.” Does this mean letting Butler’s uninsured guy die?

Slate’s Dahlia Lithwick called attention to this exchange and was eloquent in describing its meaning. “This case isn’t so much about freedom from government-mandated broccoli or gyms,” Lithwick wrote. “It’s about freedom from our obligations to one another … the freedom to ignore the injured” and to “walk away from those in peril.”

This is what conservative justices will do if they strike down or cripple the health care law. And a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.

E.J. Dionne’s email address is ejdionne(at)

(c) 2012, Washington Post Writers Group

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