Wouldn’t be a news cycle without a “Congressional Dems are worried about X for 2012” story, concern X in this case being the Supreme Court’s promised legal review of the PPACA.
Democrats on Capitol Hill are worried that the Supreme Court will rule against President Obama’s healthcare reform law.
Over the last couple weeks, congressional Democrats have told The Hill that the law faces danger in the hands of the Supreme Court, which The New York Times editorial page recently labeled the most conservative high court since the 1950s.
While the lawmakers are not second-guessing the administration’s legal strategy, some are clearly bracing for defeat.
“Of course I’m concerned,” said Sen. Sherrod Brown (D-Ohio). The justices “decide for insurance companies, they decide for oil companies, they decide for the wealthy too often.”
The pessimism is fueled in part by the John Roberts court’s decision in the 2010 Citizens United case on corporate spending in elections, which Brown has called the “worst” in his memory.
I expect a little better from Ohio’s Sen. Sherrod Brown, setting the table for blaming SCOTUS should the law be struck down. I don’t think it will be. President Obama asked for this, because the question needed to be settled now. It’s a good law, and it’s constitutional. Proving that can only bolster the case for his re-election.
There is an argument about what a SCOTUS ruling would mean to the election, Steve M. covers this in more detail. I happen to think that a ruling in favor of the President wouldn’t hurt him, as the people who are going to vote against him because of “death panels in my breakfast cereal” were going to do so anyhow.
There is also the notion however that more than one justice should recuse themselves from the case, the left argues Scalia and Thomas have a conflict because of openly dealing with the litigants, the right demands Kagan recuse herself because of her role as Solicitor General before joining the court. I leave the lawyering to ABL, best I can do is amateur psychology.
I still think the law will pass muster, personally. But already using the “we lost!” playbook this early, Sherrod? Really?
Steve
Maybe my reading comprehension is flawed, but I don’t see where Sherrod Brown is bracing for defeat. That sounds like the reporter’s spin to me. There’s nothing wrong with what he said.
I know a thing or two about constitutional law, and I can safely say it would be a pretty radical thing to strike this law down. I don’t think they will do it. But I’m certainly not in a position to guarantee that this Supreme Court won’t do something radical.
Tom Hilton
Yeah, I’m with you on the unnamed “concerned” Democrats but it seems to me what Sherrod Brown is doing is just working the refs.
peach flavored shampoo
But it cannot be, b/c it was passed by a Democratic President.
Lex
The recusals are key, because the appeals-court ruling was that the mandate was unconstitutional. So if one or three justices are recused and the vote is a 4-4 or 3-3 tie, the appeals-court ruling is upheld and the law is overturned.
I don’t think that was an accident.
Cacti
As was mentioned yesterday, I think the Anti-Injunction Act issue may be the wildcard in all of this.
This would be the issue that allows SCOTUS to punt on the merits for several years.
jsfox
@Lex: Huh? The most recent ruling from the appeals court in DC with probably one of the most conservative judges around, Silberman, said the mandate was constitutional.
And frankly I don’t think anyone is going to recuse themselves from this one certainly not Thomas and if he doesn’t I don’t think Kagan will.
Zifnab
Sounds more like a go at the “Activist Judges!” line. He’s not predicting defeat, simply highlighting the court’s corporate bias. There’s nothing wrong with that, and if we saw a bit of pressure on the SCOTUS to back off the constant corporate BJs, I would appreciate that.
Lori
The upcoming court case is a great opportunity for advertising the ACA’s benefits and timetable, which too few people know about. Polls I’ve seen show that many people don’t know about how the big coverage changes will really kick in in 2014. And too few people know about the requirement that group plans use 80% minimum of payments to go towards actual care not overhead – that will keep insurance costs down. Too few people know about cost-cutting and treatment-improving changes required by the ACA. Democratic politicians should be using this opportunity to inform the public about great parts of the ACA, not to express worry.
The Snarxist Formerly Known As Kryptik
I still find myself apprehensive (read: bracingly terrified) about the Supremes taking this up because I simply can’t see a ruling on this not tainted by political backhanding, which is why I can’t expect anything more than a 5-4 in favor at best. A lot of people have more respect and faith in the Justices to rule via actual precedent and law on this than political ratfuckery.
artem1s
personally I see it as Brown rightly pointing out that there are many, many things riding on the upcoming 2012 elections, only one of which is who gets to nominate the next couple of Supremes. The Dems should be blasting this out to the electorate 24/7 for the next 365 or so days.
I do not think it is conceding the health care case to point out that given a GOP WH win (or Senate takeover) in 2012 we are in for more Citizens United, not less.
He is up for election BTW and all the money that was poured in the direction of SB5 in Ohio is now going to go to his opponent’s coffers.
schrodinger's cat
OK I have a question about the Democrats and their defeatist attitude. Why are they afraid of their own shadow, were they always such scaredy cats?
Cacti
@jsfox:
And the other conservative judge on the DC court panel dissented because he thought the case wasn’t ripe for consideration, but indicated that he would have upheld the mandate in PPACA.
Zifnab
@schrodinger’s cat: Reagan’s win in ’80, and the ’94 Republican Revolution that took the House, put a big damper on traditional Democrat liberalism.
It’s also worth noting that a lot of the loudest Dems of the 60s and 70s were, in fact, giant racists. The same assholes running Texas in ’11 were Democrats in ’76 (re: Perry campaigned for Al Gore for President in ’88).
So if the Dems seem less aggressive and offensive than they were in the 60s, that may have something to do with the big corporate capture of the racist wing of the labor party over the next few decades.
Combine that with the DLC and Blue Dog / New Democrats that were just Republican Lite, and you’ll have to notice how terribly marginalized the liberal wing of the liberal party has become. It’s hard to be brash and bold when you have such little representation. And it’s harder still to be brash and bold when you get absolutely no media attention. John McCain has a standing invitation to Meet the Press. When was the last time you saw Barbara Boxer or Bernie Sanders sitting at that table?
JGabriel
Zandar @ Top:
Because of course they do. But I don’t think they have a legitimate complaint unless they can show that Kagan worked on the admininstrations legal defense of PPACA before joining SCOTUS.
Given that the law was passed in late March 2010, and Kagan was confirmed in early August 2010, that seems unlikely (though not impossible). I don’t think any of the suits opposing it were even at the federal level by then.
.
Napoleon
@peach flavored shampoo:
No it was passed by a Democrat President.
Punchy
@Lex: If you think there’ll be a recusal by anyone in this case for any reason, I have some Las Vegas homes for you to flip.
Mnemosyne
@The Snarxist Formerly Known As Kryptik:
The lawyers here seem to think that striking down the ACA by saying that healthcare doesn’t count as interstate commerce would fuck up a whole lot of other already decided law and throw a lot of industries into chaos. Basically, the conservatives on the SC would have to decide between pleasing their corporate masters (who would be very pissed off at having the rules abruptly changed on them) and poking Obama in the eye.
I suppose there’s a chance that they could get a bare majority by trying to split the baby like they did with Bush v Gore and claim that the interstate commerce clause only doesn’t apply to this specific piece of legislation, but I’m not sure they could get Kennedy on board with that.
RalfW
Yeah. I read the “worried” headline and immediately thought, “Uh oh, lazy media hack article ahead.”
These media jerkwads can’t resist playing up the purported wimpiness of Dems. Which intensifies the perception.
I yet again a day or two ago read an opinion piece (New Yorker, I think) saying how if Osama B-L, Quaddafi, and several top Qaueda operatives had all been killed under a GOP Preznit, the press would be wetting itself with sheer amazement at the courage and strenght of leadership. Because a Dem was at the helm, “meh.”
This latest handwringing – by the press, lets be clear – is just the paid media machine doing its ungodly work.
Samara Morgan
Allahpundit already tweeted that conservatives are going to lose this, because of staunch Reagan appointee Judge Silberman’s ruling.
gwangung
This is kinda obvious. There are a lot of so-called progressives who’ve forgotten this. Actual liberal politicians ARE A MINORITY IN CONGRESS. How dim can you be to expect passage of liberal legislation with this existing?
Whatever happened to “elect more Democrats, elect better Democrats”? These so-called progressives stopped with the first and haven’t even bothered with the second.
El Cid
I think Obama should remind everyone that Supreme Court justice Bill Ayers is just one bad head cold away.
bin Lurkin'
The PPACA is not a “good law” it is at best a “barely acceptable” law and that ever so charming devil will most certainly be lurking in the details, the most important of which have yet to be implemented.
burnspbesq
@Cacti:
If you Google “Caplin amicus brief,” you’ll find a link to the brief filed with the D.C. Circuit by two former Commissioners of the IRS arguing that the Anti-Injunction Act completely divests all Federal courts of subject-matter jurisdiction to hear pre-enforcement challenges to the Constitutionality of the Act. Although it didn’t convince Judge Silberman, it may very well convince the Supremes if they are looking for a way out. I especially expect it to resonate with Kennedy, Kagan, and Ginsburg.
fasteddie9318
@Mnemosyne:
The only one of the Five Horsemen of the Apocalypse to whom this could possibly matter is Kennedy. Scalia won’t have to live through it so he no longer gives a shit about consistency, Thomas stands to reap financial gains if this thing is struck down, and Alito and Roberts are True Believers. Maybe this appeals to Kennedy, but he’s also so old that he knows he won’t have to live through the aftermath, and a big splashy overturn ruling sure would give him what he loves best, that feeling that, as the one hard-right USSC justice who’s been able to con people into believing that he’s a moderate, he’s King of the World.
Dustin
@bin Lurking’: As the father of a preemie that has cost my insurance a cool $995.3k I’m going to have to disagree. Any bill that eliminates lifetime maximum’s counts as a good bill, because it ensures my son doesn’t lose his insurance before he’s 5. Is it single payer? No, but that doesn’t make it “barely acceptable” and this purity troll crap get’s old fast.
karen marie
Yeah, regardless of the true merits of the case or precedent, this makes me skeptical that the SJC won’t strike the health care law down.
bin Lurkin'
In terms of political benefit it would be best if the SC struck down the law, the Dems can play that to the hilt.
If the law is sustained though then it’s a crapshoot, I’m by no means convinced it’s going to be a net positive for the Dems, it’s really pretty weak sauce as far as national health plans go and it has the uniquely American quality of profit to the 1% as a built in feature.
kay
I just think that’s a choice of words by the writer. “Clearly” is a weasel word.
It means “I don’t want you to think about why this isn’t as clear as I’m making it out to be”.
Sherrod Brown hates Citizens and he talks about it constantly.
I don’t think he’s “bracing” for anything. He was simply asked a question and he took the opportunity to tell the truth about his view of how damaging some of these decisions have been. I don’t see him as complicated or as someone who weighs words. That’s how he talks. He doesn’t trust the SCOTUS? Him and half the country. He’s in good company.
NR
No way will the mandate be struck down. The same court that gave us Citizens United will trip over itself to uphold the mandate, because it facilitates a truly massive transfer of wealth from American citizens to big corporations.
efroh
90 minutes of oral argument scheduled on the severability alone. I think people are fooling themselves if they don’t think there’s an extremely good chance that at least parts of the law will be overturned.
Lex
@jsfox: The ruling the judges actually will be considering is the 11th Circuit’s. They found the mandate unconstitutional.
burnspbesq
@efroh:
“90 minutes of oral argument scheduled on the severability alone. I think people are fooling themselves if they don’t think there’s an extremely good chance that at least parts of the law will be overturned.”
Would you prefer that I describe your comment using the polite term “pure speculation with no basis in fact,” or can I call it what it is, I.e., a SWAG?
burnspbesq
@efroh:
Any number can play the SWAG game. For example, why would the Supremes order the parties to brief and argue the Anti-Injunction Act, which none of the parties believes is applicable?
IT’S BLINDINGLY OBVIOUS DONTCHA KNOW.
/mockery
Joseph Nobles
@NR: Thank you. I was amazed that Sherrod was actually worried about the ACA being overturned because SCOTUS hearts corporations. That’s the reason they are going to uphold it!
I will allow Senator Brown to be making this statement in ironic jest.
Kevin Rua
Senator Brown appears confused. The largest insurance lobby has has filed a brief defending the individual mandate. After all it does require people to people to buy thier product. If the supreme court sides with the insurance companies it will uphold the madate. In other words, Brown and the insurance companies are on the same side in this debate. He can’t see past his own cliches and slogans to grasp this.
Brief can be found here:
http://www.ahipcoverage.com/wp-content/uploads/2011/10/AHIP-Cert-Amicus-Brief.pdf