The oral arguments over the Affordable Care Act are over, and I’ve been cruising around getting reactions. First, there’s general agreement that it be be a divided decision, and the swing votes will belong to Roberts and Kennedy. No surprise there, I don’t think.
Today the Court heard arguments about “severability,” or whether the entire law has to fall if the individual mandate is struck down. And it appears there may be some awareness on the court that if the mandate goes, and the ACA stays, somebody’s got to pick through the whole beast and revise the thing. The Court doesn’t want that job, but they appeared skeptical that Congress is up to it, either.
David Savage of the Los Angeles Times writes that the justices seem to be leaning toward striking down the whole law, but other writers are not that pessimistic, or optimistic as the case may be.
The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.
The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia — first, that it “just couldn’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.” Much of the lively argument focused on just what role the Court would more properly perform in trying to sort out the consequences of nullifying the requirement that virtually every American have health insurance by the year 2014.
There is widespread agreement that the decision could define the Roberts court. This has caused some people to speculate that Roberts may vote to uphold the act just so he can’t be accused of being a right-wing tool. But if he’s the right-wing tool many assume him to be, he won’t care what anyone thinks. You can’t beat being a Supreme Court Chief Justice for job security, after all.
I’m making no predictions. It could go either way.
James Carville argues that if the Supremes flush Obamacare, politically this could work out better for the Dems than for Republicans. Carville says,
“Just as a professional Democrat, there’s nothing better to me than overturning this thing 5-4 and then the Republican Party will own the health care system for the foreseeable future. And I really believe that. That is not spin,” Carville said.
David Frum agrees that a loss for Republicans in the Court would present a bigger political challenge to them than a win. And that’s because Republicans have nothing ready to replace the ACA. After all this time, they’re still hauling out the same loser arguments about tort reform and selling insurance across state lines.
My uninformed guess: the ACA prevails, and probably not by a narrow margin.
What then is that healthcare comes roaring back as a campaign issue, to which Republicans have failed to provide themselves an answer. Because of the prolonged economic downturn, more Americans than ever have lost—or are at risk of losing—their health coverage. Many of them will be voting in November. What do Republicans have to say to them?
Make no mistake: If Republicans lose in the Supreme Court, they’ll need an answer. “Repeal” may excite a Republican primary electorate that doesn’t need to worry about health insurance because it’s overwhelmingly over 65 and happily enjoying its government-mandated and taxpayer-subsidized single-payer Medicare system. But the general-election electorate doesn’t have the benefit of government medicine. It relies on the collapsing system of employer-directed care. It’s frightened, and it wants answers.
“Unconstitutional” was an answer of a kind. But if the ACA is not rejected as “unconstitutional,” the question will resurface: if you guys don’t want this, want do you want instead?
In that case, Republicans will need a Plan B. Unfortunately, they wasted the past three years that might have developed one. If the Supreme Court doesn’t rescue them from themselves, they’ll be heading into this election season arguing, in effect, Our plan is to take away the government-mandated insurance of millions of people under age 65, and replace it with nothing. And we’re doing this so as to better protect the government-mandated insurance of people over 65—until we begin to phase out that insurance, too, for everybody now under 55.
But if the ACA is struck down, won’t the Republicans still be under the gun to crank out an alternative? Well, maybe not until after the election.
Update: See Steve Kornacki, “The Debate the GOP Can’t Have.”
Here’s a new wrinkle in the Trayvon Martin killing, from the Miami Herald –
Despite public claims that there wasn’t enough probable cause to make a criminal case in the Trayvon Martin killing, early in the investigation the Sanford Police Department requested an arrest warrant from the Seminole County State Attorney’s office, the special prosecutor in the case told The Miami Herald on Tuesday.
A Sanford Police incident report shows the case was categorized as “homicide/negligent manslaughter.”
The state attorney’s office held off pending further review, The Miami Herald has learned.
I don’t know what they were going to “review,” since there was a shocking inattention to collecting evidence at the scene.
The development is in stark contrast to the statements repeatedly made by Bill Lee, the Sanford police chief who has since stepped aside and was lambasted for his handling of the case. Lee publicly insisted that there was no probable cause to arrest Zimmerman, leading many critics to say he came across more like a defense attorney for the security buff.
“Zimmerman provided a statement claiming he acted in self defense which at the time was supported by physical evidence and testimony,” Lee wrote in a memo posted on the city’s website. “By Florida Statute, law enforcement was PROHIBITED from making an arrest based of the facts and circumstances they had at the time.”
Yesterday ABC News reported –
The lead homicide investigator in the shooting of unarmed teenager Trayvon Martin recommended that neighborhood watch captain George Zimmerman be charged with manslaughter the night of the shooting, multiple sources told ABC News.
But Sanford, Fla., Investigator Chris Serino was instructed to not press charges against Zimmerman because the state attorney’s office headed by Norman Wolfinger determined there wasn’t enough evidence to lead to a conviction, the sources told ABC News.
Police brought Zimmerman into the station for questioning for a few hours on the night of the shooting, said Zimmerman’s attorney, despite his request for medical attention first. Ultimately they had to accept Zimmerman’s claim of self defense. He was never charged with a crime.
Serino filed an affidavit on Feb. 26, the night that Martin was shot and killed by Zimmerman, that stated he was unconvinced Zimmerman’s version of events.
Possibly the Sanford police department has entered the “every man for himself” ass-covering phase of the investigation. As in, “Hey, don’t look at me. I’m not the one who let the jerk go.”
The Right, which has been on a sickening “smear the dead kid” binge for the past several days, has now seized upon the information that George Zimmerman is a registered Democrat. Ed Kilgore: “aha! The whole thing was a Blue Team fragging of some sort, and nothing Real Americans should care about.”