Despite the protestations of pundits, it seems that at least one of Monday’s Supreme Court decisions was a harbinger of what was to come. The gutting of Arizona’s SB 1070, the first in their wave of Draconian Immigration Laws™, was, at the time, balanced for many on the Left by the disappointment of the “papers, please” provision in the law remaining unmolested, along with the bolstering of Citizens United in another case.
But as Melissa told our own Thomas Roberts on Wednesday (and immediately previous, me in the hallway walking to the studio), the SB 1070 decision indicated that one of the most conservative Supreme Courts in decades wasn’t writing off federalism, wasn’t writing off government power as a concept.
All those predictors aside, not only did the upholding of President Obama’s signature legislative achievement come as a surprise to many, but the fact that Chief Justice John Roberts cast the deciding vote and joined the majority knocked a lot of folks for a loop – including one reporter from The Channel Across Sixth Avenue who got the opinion wrong on the air while reading from it.
Brian Beutler of Talking Points Memo actually saw this coming back in March, during the plaintiffs’ oral arguments:
…conservative Supreme Court Chief Justice John Roberts may have tipped his hand that he’s entertaining the possibility that the health care law’s individual mandate can be upheld on a constitutional basis that’s different from the one supporters and opponents have made central to their arguments…
“The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense,” Roberts said… “It’s a command. A mandate is a command. If there is nothing behind the command, it’s sort of, well what happens if you don’t file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime. … Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.”
That wasn’t what the challengers wanted to hear.
But while the newly lionized Justice Roberts’ opinion yesterday expressed the same sentiments, he had also won the “broccoli argument,” the thesis stated originally by Justice Antonin Scalia that if government couldn’t force people to buy broccoli and other vegetables, it couldn’t force them to buy health insurance. Roberts later cited that argument in his opinion, which imposed a limit on the Constitution’s commerce clause. This alarmed a number of liberals, it seemed, but Adam Serwer of Mother Jones offered some calming perspective:
Liberals do have one reason to be concerned about the Supreme Court’s ruling—but it’s the court’s reasoning on the expansion of Medicaid, not the Commerce Clause, that should worry them. Medicaid is a federal program in which the states get money to provide health insurance coverage for the poor. The only catch is that for Medicaid to be constitutional, the states have to be able to say no.
That brings me to the politics of this. There’s already speculation that a lot of Republicans, lost in a fog of extremist party rhetoric about government takeovers and such, will say no to Medicaid for their state. There are some governors who clearly plan to put their fingers in their ears and scream, “la, la, la, la, la” when it comes to the law, refusing to even implement it – including Louisiana governor Bobby Jindal, who said some very strange stuff yesterday (and today, when he almost called it “Obamneycare,” so take that for what it is). And speaking of Mitt Romney, video surfaced today of him calling the mandate in Massachusetts’ “Romneycare” a tax. Oops.
You’ll hear a lot of debate, including on our show this weekend, about how this will affect the presidential race, and whether a President Romney could even follow through on his oft-stated threat to “repeal and replace” the law, considering there are those in his party that don’t seem all that interested in the “replace” part. There are some valuable arguments on both sides, but they’re all hypotheticals which depend largely upon what strategies each campaign employs from here on out, and that’s what matters.
As Melissa noted yesterday, the President has a second chance to introduce the law to an American public that can’t seem to bother with the details, and Republicans seem to think that they have an issue to run on all the way until November. And considering how unpopular their crusade against women’s reproductive rights has been, they may find that once people start thinking about the kind of mandates Republicans do like, it may not be so much of an issue.
Below the jump, find video of Melissa’s analysis from right after the decision’s announcement, and President Obama’s remarks.