Following Tuesday’s oral arguments on the Affordable Care Act, reporters rushed to microphones in front of the US Supreme Court and declared the individual mandate to buy health insurance dead. Jeffrey Toobin of CNN called it a “train wreck for the Obama Administration.”
Wednesday looks like strike two. The topic was “severability”—the ability to separate the individual mandate from the rest of the law.
And immediately after the hearing, Toobin doubled down:
This still looks like a train wreck for the Obama Administration, and it may also be a plane wreck. This entire law is in serious trouble. It also seems that the individual mandate is doomed. [Justice] Anthony Kennedy spent much of this morning talking about if we strike down the individual mandate, how should we handle the rest of the law?
Now it is less clear that they are going to strike down the whole law. There does seem to be some controversy in the Court about that…But it seemed almost a foregone conclusion today that they were going to strike down the individual mandate and the only question is does the whole law go out the window with it?
Pete Williams of NBC agreed:
I think a majority of the court believes that if it rules that individual mandate is unconstitutional, then the rest of the health care law probably cannot be saved.
It would seem that a majority of the court–again breaking down along the familiar lines–believes… it would be a very difficult, almost impossible, chore to figure out which parts of the law could still be saved.
Democratic and Administration spokespeople have tried to spin this, but make no mistake: If the Supreme Court rules the individual mandate and the whole law unconstitutional this June, it would be a monumental disaster for the president and his re-election effort.
It would mean his signature domestic achievement, which consumed a year and a half of his presidency in the midst of the worst economy since the Great Depression, was for nought.
It also would mean that with easy control of the House of Representatives and 60 votes (on paper, at least) in the US Senate, the president and his team were unable to construct a bill that could survive judicial review two years after its passage. And remember, President Obama taught constitutional law at the University of Chicago!
Also, the defense of this law by Solicitor General Donald Verrilli before the Court was so inept observers were shaking their heads in astonishment. Verrilli reports to Attorney General Eric Holder, who of course reports to the president.
Clearly Holder has been one of the most ineffectual attorneys general we’ve seen in a while, even if the right wing’s demonization of him is way over the top.
I’ve always thought the Affordable Care Act was way too onerous and complicated, especially in such a weak economy. I also wrote that given our fiscal situation, we just couldn’t afford it. So, maybe it’s just unsustainable, even though it undoubtedly brought health care to people who needed it.
The Supreme Court may surprise us all, but right now the vote looks like it’s going to be 5-4 against, on strictly partisan lines. If that happens, then the president will have to relearn Harry Truman’s words: The buck stops here.