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NYT Pre-Blames Activist Conservative Court

From the New York Times:

Supporters Slow to Grasp Health Law’s Legal Risks

June 23, 2012

WASHINGTON — With the Supreme Court likely to render judgment on President Obama’s health care law this week, the White House and Congress find themselves in a position that many advocates of the legislation once considered almost unimaginable.

Including the advocates at the New York Times, whose editors back in September 2009 pronounced the states fight against Obama-Care in general and the individual mandate in particular to be doomed.

In passing the law two years ago, Democrats entertained little doubt that it was constitutional. The White House held a conference call to tell reporters that any legal challenge, as one Obama aide put it, “will eventually fail and shouldn’t be given too much credence in the press.”

So naturally our one party news media did not give these challenges too much credence. They always do what they are told.

Congress held no hearing on the plan’s constitutionality until nearly a year after it was signed into law. Representative Nancy Pelosi, then the House speaker, scoffed when a reporter asked what part of the Constitution empowered Congress to force Americans to buy health insurance. “Are you serious?” she asked with disdain. “Are you serious?”

And what could be more amazing that Nancy Pelosi being blindsided by reality?

Opponents of the health plan were indeed serious, and so was the Supreme Court, which devoted more time to hearing the case than to any other in decades. A White House that had assumed any challenge would fail now fears that a centerpiece of Mr. Obama’s presidency may be partly or completely overturned on a theory that it gave little credence. The miscalculation left the administration on the defensive as its legal strategy evolved over the last two years.

Let the blaming begin.

“It led to some people taking it too lightly,” said a Congressional lawyer who like others involved in drafting the law declined to be identified before the ruling. “It shouldn’t strike anybody as a close call,” the lawyer added, but “given where we are now, do I wish we had focused even more on this? I guess I would say yes.”

Looking back, Democrats said they had had every reason for confidence, given decades of Supreme Court precedents affirming Congress’s authority to regulate interstate commerce, and lawyers who defended the law said they had always taken the challenge seriously even if politicians had not. But they underestimated the chances that conservative judges might, in this view, radically reinterpret or discard those precedents.

In other words, the Obama lawyers only mistake was not realizing just how radical the conservative justices on the Supreme Court might be.

Adversaries said the law’s proponents had been too attentive to liberal academics who shaped public discussion. “There’s very little diversity in the legal academy among law professors,” said Randy E. Barnett, a Georgetown University law professor and a leading thinker behind the challenge. “So they’re in an echo chamber listening to people who agree with them.”

Unlike, say, the news media. Which is why they were also blindsided by the Court taking this case so seriously.

David B. Rivkin Jr., who filed a challenge joined by 26 states, said that extended across party lines. “Nobody in Congress is interested in constitutional issues,” he said. “The Republicans on the Hill were no better than the Democrats. It really was very late in the game when Republicans realized there would be no policy deal and began to look at the constitutional issues.”

Notice that The Times only quotes Mr. Rivkin, the man behind the states lawsuits, when he is blasting Republicans.

Whether a different approach might have changed the outcome remains unclear. With the benefit of hindsight, some advocates said they would have been better off framing the law more explicitly as a tax, although doing so would have been politically explosive.

Lest we forget, during his 2008 presidential campaign Obama pledged that "no family making less than $250,000 a year will see any form of tax increase. Not your income tax, not your payroll tax, not your capital gains taxes, not any of your taxes."

In a 2009 interview, after pointing out that through the Obamacare mandate "the government is forcing people to spend money, fining you if you don’t," ABC’s George Stephanopoulos asked Obama: "How is that not a tax?" Obama absolutely rejected the idea that the "penalty" was a "tax increase."

So it was the Constitutional scholar, Obama, who hoisted the tax line with this petard.

Short of that, some said, strategy alternatives like slowing down the case still might not have made a difference.

It is interesting that the administration passed up one final appeal, which would have put the Supreme Court’s ruling after the elections.

And the Supreme Court may yet uphold the law, in which case the second-guessing in Washington will quickly transform into triumphant told-you-so’s. Ms. Pelosi, for one, has not retreated. “We’re ironclad on the constitutionality of the bill,” she told CBS this month. “I think we’ll be 6-3 in our favor.”

Democrats, and some Republicans, were so sure from the start because the concept of requiring Americans to obtain insurance or pay a penalty had originally been advanced by conservatives to avoid government-run health care.

And it was quickly withdrawn, once these conservatives (at the Heritage Foundation) realized that such a mandate would indeed be unconstitutional.

The Constitution authorizes Congress to regulate interstate commerce, but critics argued that rather than regulate activity, the law regulated inactivity — in other words, the choice of some Americans not to buy a commercial product.

Democrats who tried to warn their party of that risk were brushed off. When Michael Waldman, president of the Brennan Center for Justice at the New York University School of Law, wrote such an article in Newsweek in March 2009, a pair of law professors disputed him in print.

“It was so absurd a concept that the court would do this,” Mr. Waldman recalled. “Nobody thought it was unconstitutional until quite recently.” Even now, Mr. Waldman considers the law “plainly constitutional” based on decades of doctrine. “It’s just that you do have this increasingly activist court,” he said

Once again, they are blaming the ‘activist court.’ It will be interesting to see how they ‘walk back’ all of these attacks, if the Court upholds Obama-Care. Suddenly, they won’t be so activist or radical.

This article was posted by Steve on Monday, June 25th, 2012. Comments are currently closed.

3 Responses to “NYT Pre-Blames Activist Conservative Court”

  1. Tater Salad says:

    I loved this article and the one small sentence which stated ” blind sided by reality” (Nancy Pelosi) was really on target. It seems she has been “blindsided” on a whole range of issues, laws and statements the past 6 years. She is a full blown progressive loon that panders to the less fortunate while enriching herself in millions of dollars herself. This my friends is a “Hypocrite” at the top of the heap! And the heap of Democrats being hypocrites is huge!

  2. Chinnubie says:

    What’s going to keep Obama and his minions from ignoring the court and moving forward? They have shown no respect for the Constitution in the past what would make this any different? Why isn’t the Court an “activist Court” when it allowed Roe v. Wade to be guided under Federal protections ignoring the 10th Amendment. Suddenly, the Constitution can mean whatever some lawyer decides, regardless of practical intent. I get that we’re all Americans but aren’t liberal progressive types beginning to lean a little heavy on the treasonous side of what the Founders had originally intended? Especially, the Life & Liberty parts of the Declaration. Can’t we just give them a section of the northeast corridor and let them attempt their utopia while the rest of us get on with pursuing our happiness?

  3. GetBackJack says:

    Both sides of Nancy Pelosi are blinded.

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