Wednesday, March 28, 2012



Though one would not know it from watching or listening to the TV or radio news or reading a non-financial newspaper, there is something going on in the world other than the Trayvon Martin story. One of those items is the Supreme Court’s spending three days entertaining oral arguments on the constitutionality of what has come to be known as Obamacare. At this writing (about 3:30 PM Chicago time on Wednesday, 3/28/12), it looks as if the “conservatives” on the court—Scalia, Roberts, Alito, and Thomas—want to strike down the whole law. The “liberals” on the court—Breyer, Sotomayor, Kagan, and Ginsburg—would like to preserve the whole law and, should the insurance mandate be struck down, they would like to preserve as much of the law as is possible. Most importantly, and less predictably, Justice Kennedy, the swing vote, appears to be siding with the conservatives in wanting to strike down the whole law. But who knows? We can’t get into the Justices’ heads, we won’t get a decision until maybe June, and oral arguments are only part of the case. Two points, though, bear making, in order of importance:

First, as one who really believes that the job of a Justice, or any judge, is to interpret the law and the Constitution as opposed to writing the law and/or single-handedly amending the Constitution (rather than one who just says that the Justices should limit themselves to interpreting the law while really wanting them to make law the way I want it made, as many of my “conservative” friends are wont to do), I am appalled that we deem ourselves able to predict the outcome of this, or any case, based on a the Justices’ political leanings. What is even more appalling is that such predictions may turn out to be right. If the Justices are interpreting the law, their political leanings should be of no consequence in deciding a case. Perhaps one could argue that the Justices’ views of certain legal/political issues, such as the reach of the Commerce clause, should be relevant, but be assured that those who are predicting the outcome of this case are not basing their predictions exclusively on, say, Justice Alito’s view of the Commerce clause.

Second, if the “conservatives” succeed in having the whole law struck down (which would seem to this perhaps self-styled conservative to be a glaring example of judicial overreach; if the insurance mandate is Constitutionally defective, strike down the mandate and leave the rest of the law intact. Then let the legislative branch deal with the problems that would arise from, inter alia, the continued existence of the preexisting conditions provisions without the insurance mandate. That would seem to be the outcome that those concerned with the Court’s tendency to make, as opposed to interpret, the law would want. While I digress, at least I do so parenthetically.), the Republicans are going to have two problems.

The first problem that the Republicans will have will be both substantive and political. Despite conservatives’ and other Republican voters’ protestations that they “hate Obamacare,” they love some of its provisions. Perhaps most saliently, even those who profess to detest Obamacare like having their older (22-26) kids’ being able to get insurance coverage through their parents’ policies. If Obamacare is gone, that provision is gone. Maybe just as saliently, even those who hate Obamacare would like, in 2014, if not sooner, to be able to get health insurance even if they, or their spouse or children, have what passes in the world of health insurance underwriting for a preexisting condition. That provision, too, will vanish if the law is struck down.

The Republicans are not stupid, though sometimes judging from the GOP presidential field, with one exception, people could be excused for thinking so, but, again, I digress. The GOPers realize that many provisions of Obamacare, and especially the coverage for adult children and the preexisting conditions provisions, or something like them, are popular. Thus, most Republican pols promise to incorporate these provisions in their version of health care reform. But they will have to move awfully fast, and avoid a veto by a Democratic, in all likelihood, president who would love to see them swing in the wind, if they are to get a reform enacted that would preserve these popular provisions. Meanwhile, the Democrats will incessantly remind people that it was the Republicans who wanted their adult kids to go uninsured and for them to not be able to get coverage due to some preexisting condition.

The second problem the GOPers will have will be purely political: if Obamacare is struck down, a very big issue will be removed from the 2012 presidential race. At this juncture, the GOP needs all the issues it can get.

Doubtless I will be writing more on this case as it progresses, but this will have to do for now, much to my readers’ relief.

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