Talk Elections

....rather than just the mandate, how will that affect the race?

I think Obama could be helped if he comes out strongly against the court for this and other bad rulings. 80% of Americans oppose Citizens United, and 65% strongly oppose it. How many issues have 65% of Americans strongly on the same side? Today's court would still rule 5-4 for Bush v. Gore. The court needs to branded the activist right-wingers that they are.

Of course if Obama just tepidly criticizes it, this will help Romney.

Advantage Romney as he will be able to claim that Obama and his Democratically controlled Congress rammed something down the American people's throats that they didn't want.  (The American People may want ObamaCare, but Romney will paint the court as speaking on behalf of the people.)

Obama could paint the court as far to the right and clueless, but if he comes out and complains too much it could brand him as a cry-baby, whether fair or not, and Romney will seize on that.

The Supreme Court doesn't rule on behalf of the people. 80% of Americans oppose the Citizens United ruling. In the other direction, 73% of Americans opposed interracial marriage when the Supreme Court ruled on Loving v. Virginia.

You're right, but Romney could paint it as such saying the "people have been vindicated."

I wonder if Alf Landon used that in his Presidential campaign. "Between these Supreme Court rulings, Maine voting for me, and this literary digest poll, I'm a shoo-in".

Politically, this is probably the best option for Obama. The country moves on, the GOP is less motivated in the fall, and Obama can drop the issue entirely.

I suppose hypothetically there would be more of an upside for Romney.  But I suspect John Roberts is smart enough to know that such a decision would destroy the legitimacy of his court, so I doubt he would vote for a total strikedown.  The vast majority of the bill's provisions haven't got the slightest thing to do with the "mandate," so I don't know where they would derive the legal justification for that kind of decision.

 In theory every year the supreme court could be challenged for being to ideologically to the left or right. Do you know why it's not challenged? Because its political suicide for a president to challenge the courts. It's one thing to challenge congress for being to concerned with their party because of re elections but its another thing to challenge the Court who has no incentive to appeal to any party considering they're in office for life.

It's one thing to have your bill stuck down but it's another thing to try and attack the court. The former might let you break even but the latter will lose you support fast even among your own party. A president criticizing the court for ruling a controversial bill unconstitutional, goes against the whole idea of separation of powers, no one wants a president overstepping his boundaries.

It depends really. If Obama fired back and said he was going to introduce a new "Patients' Bill of Rights" that included: insurance companies must cover those with preexisting conditions and expansion of age to 26, he can pin Romney into a corner to oppose popular measures or support the President's agenda.

The 2012 election impact depends on how the campaigns spin it, but the political effects of striking down the whole bill versus part of the bill are quite significant for 2016.

The "must carry" provisions are popular and unlikely to be repealed before causing real havoc, which without some form of "must purchase" they will.  If the Supreme Court strikes down only part of the act, they will have created a ticking political time bomb that will cause significant damage to the incumbent party in 2016 unless the bomb gets unexpectedly defused in time.

Guaranteed issue won't work without the mandate, unfortunately.

So, you're saying that if the whole bill gets tossed that it may propel Mitt Romney into the White House as the 45th President, but we'll likely be looking at a Democratic 46th President starting January 2017?

Not really overstepping a line with criticism.  Obama already criticized the Supreme Court after Citizens United and no one cared.  Obama's approvals are higher than theirs.

http://www.nytimes.com/2012/06/08/us/politics/44-percent-of-americans-approve-of-supreme-court-in-new-poll.html?pagewanted=all
 (http://www.nytimes.com/2012/06/08/us/politics/44-percent-of-americans-approve-of-supreme-court-in-new-poll.html?pagewanted=all)

No.  I'm saying that if we get a partial strike, it'll likely cause whichever party wins this November, be it Democrat or Republican, to lose in 2016.

If we get a complete strike, I see no clear advantage to either Obama or Romney.

Still advantage Romney. But it's probably the least bad option for Obama.

Yeah, I don't see why it would hurt him to criticize the right-wing 5 and talk about the dangers of activist right-wing judges. I'm not suggesting he try another court packing, that would be a bad idea.

I think it would be a clear advantage to Obama, because while the mandate is unpopular, striking down the whole bill would mean chaos and I think people would correctly perceive it as overreaching. I mean, they've admitted they have no intention of reading the bill. They literally would have no idea what they were doing.

I think it would be good for Mitt Romney.

He can argue that Obama wasted a large part of his term working on a project that ultimately became nothing. Obama was heavily criticized from both sides for devoting his attention to health care when the economy was terrible. Striking down the whole law makes it look like Obama isn't in touch and has terrible priorities.

Moreover, Romney can argue that Obama will try to do whatever he wants with no regard for the constitution. Romney can play up fears of an unrestricted Obama Second Term.

Bottom line, I think it would give Republicans a ton of things to totally hammer the president with.

I think that would backfire because however people feel about the bill, they'd perceive that the SCOTUS, not the President, was to blame for its downfall and they'd see Romney attacking Obama over it as gloating, distasteful. After all, it would be Romney's side that go what they wanted, and it doesn't fit to attack the President for an outcome that Romney would support. Plus, I just don't think Romney would make this argument.


It doesn't affect the perception of Obama's priorities at all. He already took the damage from it while the bill was going through process.


And Obama can say that although it eviscerated the bill, he'll respect the Court's decision (and not pull an Andrew Jackson) and his administration would start rolling up the bill. The people would see that he respected the rule of law and the Court despite the deeply unfavorable ruling to him.

Basically, the practical effects of the ruling and the massive size of the law, including the vast portions that have nothing to do with the mandate, have so far been low key. If they struck down those portions the debate would be focused on that, and the public would be focused on the more popular provisions that were struck down. Obama could then argue that the Court massively overreached and plead against a radical Republican takeover of all four branches of government, which would be effective. America is still a relatively centrist country.

One thing he could do is propose term limits for the justices, say 5 years. With the proviso that the first retirements don't happen until after 2016, so he can't be accused of packing. Term limits for judges are popular, because most people don't see the logic of having the same people sitting there their entire lives even if they become doddering 90-year olds, or have apparently lost the ability to speak (Thomas).

Why is it I can't bring myself to really care anymore?

Because it's been watered down so much. Which ironically the Republicans still consider to be so radical, that it's illegal for Congress to even enact it.

Returning to the status antelegislatum would not mean chaos.  It would cause some short term pain for some folks, just as usually happens anytime a law is struck down, but it would not cause chaos.

No one read it before voting for it, so why must the Sup Court justices be tortured? 

The only people who have actually read the entire thing are a few Tea Partyers. 

"For the health care industry, a decision striking down the entire ACA would be an absolute disaster. Physicians, hospitals, and private companies have been shifting how they practice medicine in anticipation of the ACA’s implementation. They’ve been creating accountable care organizations,[1] envisioning a significant reduction in uncompensated care, and enjoying increased Medicare and Medicaid reimbursement in primary care settings.[2] That will all vanish if the ACA is struck down. Moreover, seniors will pay more for prescription drugs and young adults will be taken off their parents’ insurance. The private insurance industry, which has seen its market shrink significantly over the last decade,[3] will see a real chance to reverse that trend disappear. According to one estimate, if the ACA is overturned, insurers may lose over $1 trillion in revenues between 2013 and 2020."

http://www.stanfordlawreview.org/online/health-care-constitutional-chaos


The Courts are supposed to show deference to the actual legislative branches, not be a legislative branch. Besides, the legislature can enact a law for whatever reason they want, while Court has to justify its decisions by determining whether something is unconstitutional. They can hardly do that without even knowing what it is.

Frankly, I hope the Court takes this opportunity to overrule Wickard v. Filburn (1942), the wartime decision that implemented the dastardly "effects" test for the Interstate Commerce Clause.

LOL ... what's funnier than leftists who care about the travails of Big Business?


Wait --  Seniors will pay more but Big Business will get less?  Oh wait, is this the magic of government that we've seen make Europe what it is today (and what the USSR was 30 years ago)?  


Wait -- if poor Big Biz "loses $1 trillion" doesn't that mean that consumers save $1 trillion?  Or are we back to the fairy dust of Big Government accounting again?


Why am I not surprised this article was written by a law student (or professor) and not by anybody actually in the health insurance business?


Having worked at a state supreme court, I can tell you that the courts are not going to allow the legislative branch to usurp the doctrine of judicial review by writing laws so long --if this one's 2,400 pages, what's to stop the next from being 24,000 or 240,000 pages? -- and then saying to the courts "You can't overturn it unless you read every single word!"

I can tell you, too, that the justices will not only reject this ... "argument", but will be insulted that they even have to listen to it.

It will be interesting what the courts decide either way.  I have a funny feeling we will know something this week, or at least I hope so.

I think, so, that whatever is decided will have the effects diminished, but not erased entirely, by the time November 6 arrives.  It's still the end of June, still 4 1/2 months from November 6, so while this is a monumental decision forthcoming, the effects in early November will be less than what is perceived if nothing other than most Americans are not paying attention to the race just yet, and probably won't until at least after the Summer Olympics.  I suspect if this decision were to happen after 1 August, it would have a lot more effect.

If the Court does choose to strike down the entire law on the basis of the mandate, the Justices will likely point to the lack of a severability clause in the original legislation. Absent such a clause, it's up to the Court has to decide how the mandate interacts with the rest of the law, and the lower court cases on the mandate provide ample precedent for any direction they decide to go.

Yes, fair enough; the absence of a severability clause in the law does give the court discretion.  But I think it would behoove SCOTUS, having made such a showcase of the oral arguments, to base their decision on a finding regarding the law's contents, and one would be hard pressed, as I see it, to make a credible case that even a majority of the bill's provisions were tethered to the "mandate."

I guess I just find this whole case to have the character of Alice in Wonderland.  We're calling something a "mandate" that has no enforcement provision.  We're using the sliding scale argument about Commerce Clause carte blanche for this law, which is explicitly limited to the regulation of the health care market, in the face of SCOTUS decisions from Gibbons vs. Ogden to Reich v. Gonzalez which have given Congress pretty much plenary authority over regulating commerce.   Hell, after what Scalia wrote in his opinion upholding Reich, for him to turn around now and knock down the "mandate," he'll have to become a contortionist. 

But, then again, every issue seems to be like that; up is down and down up nowadays, so perhaps Wonderland is our new normal.