I have been working very hard on my book-in-progress, and, given my time constraints (which must take into account the various organizations that are actually paying me to do things), have tried to ignore everything else that would normally induce me to post on this blog. But it is difficult to ignore the Supreme Court.
The Supreme Court of the United States heard arguments last week on whether the individual mandate provision of Obamacare is constitutional, and if it is not, whether the whole bill must be overturned (or just the mandate itself).
Readers will know that I think the mandate should not stand. I agree with Justice Kennedy, who last week observed that the individual mandate fundamentally changes the relationship between the federal government and the individual. My belief is that this would be a negative outcome. The fact that healthcare is really, really important should not trump the freedom of individual action guaranteed by the Constitution, especially since it is entirely possible, in many different ways, to fix our healthcare problems without tossing out individual liberty or killing the Great American Experiment.
The Court’s decision appears to hinge on whether five justices will agree that either A) fundamentally changing the relationship between the federal government and the individual is a good thing, or b) overturning the largest legislative effort in history is a bad idea. Our political punditry tells us that four justices are locked into position A by virtue of their Right Thinking regarding the Constitution, so the outcome will hinge on whether one of the remaining five, who most often lean toward Wrong Thinking, can be convinced that position B is true (and that, for instance, overturning Obamacare would diminish the credibility of the Court).
It was interesting to listen to the left-leaning commentators lamenting the presentation made to the Court by the Solicitor General. Despite having more than two years to spiff-up the government’s arguments, and despite several “practice sessions” in the lower courts to fine-tune the message, the government’s lawyer was strikingly inarticulate when explaining the constitutionality of the individual mandate. This, of course, is because there is no good constitutional argument for it. If the government is allowed to promulgate this mandate, then one is hard pressed to articulate a cogent limit to the government’s power over the individual. And so, the government’s lawyer could not articulate one (despite pointed attempts at coaching from the Bench by few of the Justices partial to position A).
If the mandate is overturned, this unfortunate man will be scapegoated to the Progressive’s Perpetual Penalty Box.
President Obama, it should be noted, could have easily kept this issue from reaching the Supremes until after the election, but he did not. Rather, he opted for a risky path that would result in the Supreme Court rendering a possibly negative decision on his signature legislative accomplishment a mere four months before the election.
And this leads me to speculate on why he would do such a thing. I agree with those who say President Obama is a very smart man, and so I have to believe that he is gambling that any decision the Court makes can be turned to his benefit.
There are, in essence, three possible outcomes: 1) The mandate, and Obamacare, will be upheld. 2) The mandate will be overturned, but the rest of the legislation can stand. 3) The mandate will be overturned, and so will the entire package.
If Outcome One occurs, not only will Obamacare stand, but also the Supreme Court of the United States will have agreed that the government can direct the economic activities of individuals, to the extent that the Central Authority can force individuals to enter into contracts with private companies against their will. (Until now, in order to form a valid contract both parties had to enter the contract voluntarily.) This would be such a fundamental change in the relationship between the government and individuals as to entirely negate the basic premise underlying the Constitution. And while Outcome One might galvanize the Tea Party to sweep Republicans back into power at all levels, this fundamental victory for Progressives would dwarf the mere winning of an election by the opposition. President Obama would become a Perpetual Hero of the Progressive Pantheon, and, in fact, would be a strong candidate again in 2016. (By that time, the mess Obamacare will have become will be blamed on the Republicans’ mismanagement of it.)
If Outcome Two occurs, the issue upon which President Obama will base his re-election campaign will be set. Instead of having to rely on bogus issues like a Republican War on Women, he can run on healthcare.
Outcome Two leaves Obamacare intact, except for the mandate. The mandate is “merely” the funding mechanism for the legislation. The whole package can then be salvaged simply by re-instituting the mandate, but this time explicitly calling it a tax. (If they would have called it a tax in the first place, there would not have been any grounds for a constitutional challenge).
To do this, of course, the President will have to be re-elected, and will have to hold the Senate and gain a majority (or near-majority) in the House. In engineering this electoral sweep, healthcare will be his ticket.
His campaign would likely be based on three elements related to healthcare. First, of course, he will remind us of all the good stuff we will lose if we don’t put Democrats back in power – the uninsured will remain uninsured, people with pre-existing conditions will again be unable to get insurance, and our 25-year-old “children” will have to fend for themselves. Second, he will point to the Republican’s alternative healthcare plan which (unless some miracle occurs between now and the summer) is no plan at all; it’s chaos. Third, he will rely on the assistance of the Evil Health Insurance companies. The health insurance industry, as I have pointed out, is desperately relying on Obamacare, which is their only path to a viable business model. This is why they pulled out all the stops to see that Obamacare was passed in the first place. If saving Obamacare depends on electing Democrats, electing Democrats is what the industry will try to do.
So the moment the Supreme Court chooses Option Two, the insurers will do everything in their power, once again, to demonstrate their fundamentally ruthless, evil natures. They will raise their premiums 90%; or rule that they will no longer pay for newer cancer therapies; or announce that they are doubling their rescission efforts. Whatever it takes to demonstrate that, if you people elect Republicans, when you get sick you will have hell to pay. “Welcome back into our tender mercies, ” the heartless health insurance executives will laugh. “We, who have no sense of human decency or compassion, are very pleased to wallow once again in your pain and suffering and despair, in the name of profit.”
The Republicans will not know what hit them.
Outcome Three throws out Obamacare altogether. This outcome (like Outcome Two) re-establishes healthcare as the President’s only necessary re-election issue.
President Obama might. of course, take the same tact as he would take under Outcome Two – that is, re-instating Obamacare as originally written, but fashioning the mandate as a tax. He could then enlist the help of the Evil Insurance Industry, as above.
Or, he could go for the Brass Ring.
President Obama, it will be recalled, was originally against an individual mandate, and invoked as reasons for opposing it all the reasons the Conservatives argued before the Supreme Court. The mandate was placed into Obamacare as the only viable funding mechanism for a reform plan that included private insurers; and private insurers were included in the plan as the only feasible way to pass any reform plan at all.
But what Progressives – and President Obama himself, according to his own words – have wanted all along was a universal, single-payer healthcare system run by the government. (And indeed, in my view, Obamacare was designed to evolve to just that outcome after a few years.) Outcome Three will give the President a real chance of getting what he really wants, right now, in one giant step.
To this end, the President could address the nation, saying:
“My fellow Americans, we tried! Nobody can say we didn’t. We presented our nation with a healthcare plan that would cover almost everybody, and which would have saved the private insurance industry. But now, thanks to the the actions of the Republican naysayers, the Supreme Court has ruled out the only mechanism that would have allowed our healthcare reform plan to include the participation of the private insurance industry. And now, with this ruling, and with the Republican-led demise of our visionary healthcare plan, the insurance companies tell us that in order to remain in business they will have to price their products so high that the number of uninsured Americans will soar – my advisers tell me that soon, over 100 million of you will be without health insurance. You and your loved ones and your neighbors face imminent death or disability, thanks to Republican nihilism.
Republicans should know that it may be easy to destroy, but it’s difficult to create. Where is their plan to save our healthcare system, and spare the lives of our citizens? All they have to offer are platitudes and chaos, and vague mutterings about “the markets.” This is all they have, after destroying our new centrist, market-based healthcare plan, which was made law by your elected representatives, and which would have brought high quality healthcare to everyone.
But thankfully, we still have a choice. And thankfully, the time to choose is now.
I and my Democratic colleagues did not want it this way. We fought hard against it. But our Republican opponents and their allies in the reactionary Court leave us with little choice. My fellow Americans, re-elect me, and send Democrats to the Senate and the House, and we will act to save the American healthcare system. If you re-elect me, and give me a Democratic Congress, I pledge that within 60 days, we will pass into law my new program to expand Medicare to cover all Americans. This is not the path I would have chosen if there was a real choice, and indeed it is not the path I chose. But our opponents saw to it that all the other paths have been closed to us; such was their blind zeal to destroy. And if you don’t like it, as I myself do not, you know who to hold responsible at the polls.”
If the individual mandate is overturned, the Republicans had better have an alternative healthcare reform plan ready to go that they can articulate immediately, simply, compellingly and often. If they do not, the President will play them like a fiddle.