Liberals Panic As Health Care Debate Enters Final Round
After Tuesday's arguments in the U.S. Supreme Court over the constitutionality of the individual mandate -- the provision in President Obama's health care law that requires just about everyone to buy health insurance by 2014 -- liberal pundits were freaking out. During the final arguments Wednesday, the court weighs whether or not the law can exist without the mandate, which is, after all, its cornerstone (audio posted here.)
The defense of the mandate delivered by Solicitor General Donald B. Verrilli, Jr., on Tuesday was widely panned, but most of the attention was rightly on the justices' constitutional repartee. Jeffrey Toobin, a CNN legal analyst and longtime writer for the New Yorker, tweeted that the oral arguments were a "train wreck" for the Obama administration.
"The only conservative justice who looked like he might uphold the law was Chief Justice Roberts who asked hard questions of both sides, all four liberal justices tried as hard as they could to make the arguments in favor of the law, but they were -- they did not meet with their success with their colleagues," Toobin said on CNN.
Channeling the argument that the debate is ultimately about "freedom," Slate writer Dahlia Lithwick attacked the court's conservatives (including swing-voter Anthony Kennedy) as a group wanting to set the definition of freedom back two centuries:
[I]n America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community, or real concern for those who don’t want anything so much as healthy children, or to be cared for when they are old.
The fallout from Tuesday would seem to bolster arguments made by liberals at the outset of the health care debate that the individual mandate was not the best way to get most Americans covered by health insurance. But some, including Jonathan Cohn, writing at The New Republic, are prescribing chill pills, citing legal experts who arguing that the odds of the court upholding the law are still "50-50, at best." Oral arguments tend to have little effect on the actual outcome, and the votes of many justices, especially Kennedy, are notoriously unpredictable.
As far as the presidential election is concerned, no one seems to agree what the political effects would be for Obama if his signature legislative achievement were invalidated by the court. Some, like Ross Douthat at the New York Times, argue that, because many parts of the law -- including the reforms to the insurance industry -- are relatively popular, the administration could benefit from the law being struck down. It might galvanize liberal voters.
It would also deprive likely Republican general election opponent Mitt Romney of one of his key promises, that he would eliminate "Obamacare" on "day-one" in office. If there were no Obamacare, David Horsey notes in an L.A. Times column, Romney would have to come up with a specific plan to reform the U.S. health care system. It could also relieve Romney of his key vulnerability among Republicans: the fact that his own health care reform law in Massachusetts closely resembles the hated Obama law.
Of course, none of this will be known before the justices render their decision in June.