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Issue Analysis

    Obamacare SCOTUS Fever Has No Cure

    The countdown has begun.

    The time of year normally reserved for excitement only among baseball fans and out of school students has an added political component that's unusual even for a presidential election year: a nation breathlessly awaiting a Supreme Court decision that could swing that election.

    The 24/7 news cycle is feeding on this decision like Michael Moore at an all-you-can-eat Obama fundraiser with wild speculation rarely seen outside of the markets or Las Vegas.

    There is a growing belief by some insiders that the individual mandate portion of the law will not survive.

    Fifty-seven percent of the attorneys and former clerks now say they expect the court to strike down the law's individual mandate — compared with just 35 percent who thought that was likely in March.

    Little hints and details are being read and clung to with all the fervor of a teenager trying to figure out what every word from a new love might mean. The rumor that Chief Justice Roberts might be writing the decision has led to tea leaves reading all over the place but Guy Benson puts that into perspective.

    With all due deference to the estimable junior Senator from Utah, everyone needs to slow down.  Of course it's possible that Roberts, a Bush appointee, will take the lead in striking down Obamacare's individual mandate -- or maybe even the entire law.  It's also entirely conceivable that if a majority voted to uphold the law in private, Roberts decided to assert his leadership by writing the decision himself.  In doing so, he would take additional ownership of "The Roberts Court," and could manage the newly-established precedent as he sees fit.  This could mean trying to "limit the damage," so to speak, perhaps by attempting to offer some concrete limiting principles that would help prevent future Congresses from abusing the expanded interstate commerce precedent.

    People on both sides of the issue are preparing for an outcome that may not satisify many.

    Most Democrats want to see the law upheld, while most Republicans want it overturned. Another widely anticipated possibility would be the justices striking down the mandate requiring individuals to have health insurance while keeping the rest of the law in place. That outcome gets mixed reviews from advocates and opponents alike, with more than half of Democrats (56 percent) unhappy with that possibility, while Republicans are split, with 43 percent liking such a decision, and 47 percent dissatisfied.

    The rampant speculation, of course, lays the groundwork for pre-spinning the decision. Anticipating the worst (anything but the entire law being allowed to stand), the narrative on the left has been to discredit the Supreme Court should it rule unfavorably for them.

    From WaPo:

    We have two days until the Supreme Court rules on health care — two days until we find out whether Akhil Amar’s life has been a fraud.

    Amar is the Yale constitutional law professor (my former teacher), who recently told The Post’s Ezra Klein that a 5 to 4 ruling striking down Obamacare would destroy his faith in the court.

    “If they decide this by 5-4,” Amar said, “then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party and party loyalty.”

    Amar’s cri de coeur was a dramatic but otherwise typical expression of sentiment in legal academia, where it is widely assumed that no serious person could doubt the law’s constitutionality.

    Actually, serious people know that the two components of "legal academia"-lawyers & professors-are notoriously in the bag for the Democrats and haven't seen a government foray into the lives of citizens they thought was egregious in the past forty years.

    E.J Dionne manages to both identify the real problem with this law while contributing to the progressive caterwauling about the horror of conservative justices on the Court.

    Any day now, the U.S. Supreme Court may make possible something that has yet to happen: an honest and complete discussion of the Patient Protection and Affordable Care Act.

    And if it throws out all or part of the law now popularly known as "Obamacare," we will need a fearless conversation about how a conservative majority of the court has become a cog in a larger right-wing project to make progressive political and legislative victories impossible.

    I still harbor the perhaps naïve hope that some conservative justices -- Anthony Kennedy? John Roberts? -- will pull back from judicial activism and allow the voters to decide the fate of the health care law in this fall's elections. And here is where the court's reintroduction of the health care issue into the political debate could be turned into a blessing by allies of reform, provided they take advantage of the opportunity to do what they have never done adequately up to now. They need, finally, to describe and defend the law and what it does.

    It is beyond rich to hear progressives moaning that striking down a component of the law that relies on a bastardization of the Commerce Clause would amount to "judicial activism", something the left hasn't really been bothered by much for three decades now.

    But Dionne's admission that there hasn't been an "honest and complete discussion" about Obamacare raises another question. If he deems it necessary and a good thing, why was the administration so loathe to thorough debate about it prior to the passage of the law? It's very convenient to be on the side of frank discussion about legislation after it has been ramrodded through under cover of the night. Congress is supposed to be a deliberative body, after all, not one that passes a landmark bill thousands of pages long to "find out what is in it".

    Americans probably would have enjoyed an honest discussion about whether the Affordable Care Act actually made health care affordable or if this approach was best in lieu of more market-based alternatives.

    Opposition to important legislation isn't enough, an alternative must be provided and the GOP (those not named "Paul Ryan", anyway) hasn't exactly shown the coherence or temerity to provide one thus far.

    John R. Graham does give them a rather simple direction to go forward in this Op-Ed:

    Eliminating this tax discrimination so that everyone can choose the health plan that works for his family would immediately solve the problems of portability and pre-existing conditions. By the stroke of a pen, it would also result in a raise of $10,000—tax exempt—for the average American family. Why Republican politicians believe that such a reform carries unbearable political risk is a mystery for the ages.

    The SCOTUS decision this week to uphold the key component of Arizona's SB1070 law (and the one progressives hated the most) has already been spun several different ways by the MSM as a victory for the administration, which it clearly wasn't.

    The media will no doubt double-down on advocacy "journalism" should the individual mandate be held unconstitutional by the Court in an effort to mitigate any effect it could have on President Obama's reelection.

    Can the establishment GOP seize on the opportunity presented by a favorable ruling and take over the narrative about the government's role in providing, or not providing, health care to American citizens? Or will it snatch defeat from the jaws of victory as it has so many times in the recent past?

    We'll know shortly after that countdown clock expires.