Many people have blamed Obama Solicitor General Donald Verrilli’s poor defense of the law for the sudden jeopardy Obamacare finds itself in, and there’s no denying he was unprepared to answer questions that we’ve known for months would be central to the case.
But there’s another explanation for the botched prediction: Simply put, legal observers of all stripes, and Obamacare’s proponents, including those in the administration, badly misjudged, and were too overconfident about, the tone, attitude and approach that the court’s conservative bloc, particularly Justice Scalia, would take towards the administration’s arguments.
Keep in mind: Many observers, Obama officials included, spent weeks treating Scalia like a potential swing vote on the case. Lawyers defending the law wrote some of their briefs and opinions with an eye towards persuading Scalia. They consciously invoked Scalia’s own words from a 2005 opinion affirming Congress’s power to control local medical marijuana in hopes it signaled he might be open to the administration’s defense of the individual mandate.
This now looks like a terrible misjudgment. During oral arguments this week, Scalia invoked the broccoli argument to question the goverment’s case. He mocked the government’s position with a reference to the “cornhusker kickback,” even though that’s not in the law. As Fried notes, this language is straight out of the Tea Party guerrilla manual that was written during the battle to prevent Obamacare from becoming law in the first place.
All of which is to say that the law’s proponents were badly caught off guard by the depth of the conservative bloc’s apparent hostility towards the law and its willingness to embrace the hard right’s arguments against its constitutionality. They didn’t anticipate that this could shape up as an ideological death struggle over the heart and soul of the Obama presidency, which, as E.J. Dionne notes today, is exactly what it has become.
Gee Greg, I saw this trainwreck coming a long time ago. Some of us didn’t have our heads up our own asses. This is what happens when you get high on your own Koolaid.
Let’s forget for a minute that Obamacare is a bad law. It’s already unpopular and it hasn’t even taken effect. Let’s look at the constitutional argument.
The U.S. Constitution created a government with enumerated powers. Any powers not enumerated in the document are reserved to the states or the people.
Obamacare is an unprecedented expansion of congressional power through the Commerce Clause. It requires people to purchase health care insurance from private companies. Supporters of Obamacare think the Necessary and Proper Clause allows congress to make people buy health insurance whether they want to or not.
If they can do that, what is the outer limit of congressional power? Can they order you to buy broccoli too?
Maybe you Journolistas should have fought for Single Payer instead of selling us out for the Public Option that we never got anyway.