Reviewing Day 3 of the Oral Hearings on the ACA

Politico has another fine summary.

Andrew Sullivan has a collection of rapid reactions.

David Frum sums up many of my feelings about the GOP right now:

If you have said over and over again, in writing, that you object to judges writing their policy preference into the Constitution, you have to wince a little at the invitation to write your own.

Especially when the principle on which you are invited to reverse yourself—the distinction between economic “activity” and “inactivity”—is likely to be the laugh of the law schools over the next 100 years.

My uninformed guess: the ACA prevails, and probably not by a narrow margin.

What then?

What then is that healthcare comes roaring back as a campaign issue, to which Republicans have failed to provide themselves an answer. Because of the prolonged economic downturn, more Americans than ever have lost—or are at risk of losing—their health coverage. Many of them will be voting in November. What do Republicans have to say to them?

Make no mistake: If Republicans lose in the Supreme Court, they’ll need an answer. “Repeal” may excite a Republican primary electorate that doesn’t need to worry about health insurance because it’s overwhelmingly over 65 and happily enjoying its government-mandated and taxpayer-subsidized single-payer Medicare system. But the general-election electorate doesn’t have the benefit of government medicine. It relies on the collapsing system of employer-directed care. It’s frightened, and it wants answers.

“Unconstitutional” was an answer of a kind. But if the ACA is not rejected as “unconstitutional,” the question will resurface: if you guys don’t want this, want do you want instead

In that case, Republicans will need a Plan B. Unfortunately, they wasted the past three years that might have developed one. If the Supreme Court doesn’t rescue them from themselves, they’ll be heading into this election season arguing, in effect,Our plan is to take away the government-mandated insurance of millions of people under age 65, and replace it with nothing. And we’re doing this so as to better protect the government-mandated insurance of people over 65—until we begin to phase out that insurance, too, for everybody now under 55.

Ezra Klein has a cracker of an interview with Reagan’s Solicitor General, Charles Fried:

Ezra Klein: Tuesday’s arguments seemed to focus on the question of a “limiting principle.” So is there a limiting principle here?

Charles Fried: First of all, the limiting principle point kind of begs the question. It assumes there’s got to be some kind of articulatable limiting principle and that’s in the Constitution somewhere. What Chief Justice John Marshall said in 1824 is that if something is within the power of Congress, Congress may exercise that power to its fullest extent. So the question is really whether this is in the power of Congress.

Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.

Frank Rich in New York says things aren’t as bleak for the Obama administration as the last two days might suggest:

But everyone says the Affordable Care Act is Obama’s signature achievement so far. How can he just walk away?
He can take credit for the provisions that Americans love: coverage for the young up to age 26 on their parents’ policies; lowered drug costs for the elderly; and, most of all, the ban on insurance companies either raising premiums or denying coverage to those with preexisting conditions. He can also point out that the Romney-Ryan budget will maim Medicare, another hugely popular health-care provision created by Democrats.

The popular parts of the health-care law could be unsustainable if the Court strikes down the mandate, however. Premiums will skyrocket.
By then it will be 2014, and, as James Carville correctly pointed out this week, the GOP “will own the healthcare system for the foreseeable future.” The Democrats can heap the blame for rising costs and every other health-care ill on the Republicans, who to this day have not offered a plausible alternative to Obamacare. Indeed, Carville argues that a court decision against Obama “will be the best thing that has ever happened to the Democratic Party.” That’s hyperbole, but he’s onto something.

Jonathan Chait rails against the hypocrisy of conservatives who had made railing against “judicial activism” one of their calling cards:

The only thing Rosen truly failed to anticipate in his piece was how quickly Republican judges would pivot from impassioned defenses of judicial restraint to judicial activism when the opportunity arose to deploy it in their party’s behalf. In the piece, he described Antonin Scalia as a fierce opponent of this movement. Scalia, wrote Rosen, “was not in favor of striking down laws in the name of ambiguous and contestable economic rights.” At one point Scalia attacked the movement to read economic rights into the Constitution as a “threat to constitutional democracy.”

The spectacle before the Supreme Court this week is Republican justices seizing the chance to overturn the decisions of democratically-elected bodies. At times the deliberations of the Republican justices are impossible to distinguish from the deliberations of Republican senators. They are litigating the problem of adverse selection, and doing it very poorly. (Here are health economists Henry Aaron and Kevin Outterson tearing their hair out over the justices’ bungled attempts to describe the economic dynamics at work.)

Scalia himself offers the most blatant case. His famed thunderings against meddlesome judges are nowhere to be found. He is gleefully reversing his previous interpretation of the Commerce Clause, now that it is being deployed against big government liberals rather than pot smokers. He is railing against Obamacare like an angry Fox News-watching grandfather.

Reid Chirlin has some sympathy for Obamacare’s defender, Solicitor Don Verrilli:

Let’s stipulate that Verrilli didn’t deliver a command performance yesterday. Indeed, he was, at times, unbearably awkward, taking long sips from his glass of water and coughing nervously. Nevertheless, his biggest problem was that, right out of the gate, Justice Anthony Kennedy — the man who Verrilli was there to convince — basically asked when the Affordable Care Act stopped beating its wife.

Kennedy’s first question was, “Can you create commerce in order to regulate it?” which, while not exactly friendly, wasn’t so bad. But his second question was different:

Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

Well, once you’ve assumed all that, you’ve pretty much assumed away the case. Verrilli could have responded with more clarity, passion, and force. That failure is on him. But he who frames the question tends to win the argument. And what was really important in Tuesday’s arguments was that Kennedy bought into the frame proposed by opponents of the bill. Verrilli was there to persuade Kennedy, and Kennedy was essentially arguing the other side of the case.

Within that context, Verrilli could have performed better. Perhaps even much better. But he was never going to come out looking great, because his performance was always going to be judged based on how persuaded Kennedy seemed to be.

Douthat argues that striking down the mandate could help Obama in the fall:

It’s precisely this specter of an unconstrained federal leviathan reaching into every area of life, from the auto dealership to the light bulb aisle, that helped spark the backlash against President Obama and the Democrats in the 2010 midterm elections. In effect, the country responded to a period of Democratic ambition by voting to constrain liberalism – and once that constraint was accomplished, they found themselves inclined to like their liberal president a little more.

One could imagine something similar happening with the individual mandate debate. If the Supreme Court invalidates the mandate, the justices’ traditional “presumption in favor of severability” will probably ensure that the rest of the legislation remains intact – which might reassure moderate voters that the health care bill wouldn’t actually trample their liberties, because the courts are on the case. Stripping away the law’s most unpopular component might make the rest of it marginally more popular. And setting a clear limit on liberalism’s ability to micromanage Americans’ private decisions might make voters feel more comfortable voting to re-elect their micromanager-in-chief.

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