Quotes of the day

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.

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.”…

“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.”…

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.”

Some prominent legal scholars say a series of tactical decisions by President Obama’s legal team may have hurt the chances of saving his landmark health-care legislation from being gutted by Supreme Court conservatives…

Obama, a former constitutional law instructor, and White House lawyers helped shape a legal strategy essentially portraying health care as a unique marketplace that Congress, under the Constitution’s interstate commerce clause, could regulate by imposing the requirement that consumers buy insurance before receiving treatment or pay a penalty…

The critics say the administration failed to fully develop arguments tailored to the court’s conservative members, who often look to the original intentions of the Founding Fathers for guidance. The critics represent a small but influential group of scholars who believe that this “originalist” thinking — typically dismissed by the left as outmoded and dangerous to modern precedents such as the Roe v. Wade abortion ruling — could be used effectively to defend liberal laws. Some say that Obama, who has criticized the originalist view, and lawyers in his administration may have decided for ideological reasons to steer clear of a conservative-seeming argument — a suggestion deemed absurd by administration officials.

[E]ven if the White House is a fortress of message discipline, it cannot disguise the potential heartbreak for Mr. Obama, who managed to achieve a decades-old Democratic dream despite long odds and at steep cost.

If he loses both his law and re-election, many will conclude “that he bet on his major reform, and the Supreme Court defeated it, and he lost his hold on the presidency,” Robert Dallek, the presidential historian, said in an interview…

As the brutal fight continued, the president sacrificed more and more in its name: an overhaul of energy and environmental laws, greater focus on economic issues, some of his own popularity and that of House Democrats, who eventually lost their hard-won majority. “Michelle and I are perfectly comfortable if we’re only here one term if we feel like we really accomplished something,” he told aides…

If the court strikes down the mandate and Mr. Obama wins in November, he could face one last version of his perpetual choice on health care: would he settle, learning to live with a sharply edited law? (Given that Republicans see the bill as a signature piece of big-government overreach, he might have no choice.) Or would he expend yet more precious capital on health care?

But the fact is that if the mandate falls next week, nothing will happen. Then the next week, nothing will happen. Nothing again the week after that, and nothing will continue to happen for the next 70 weeks, which is roughly when the bulk of the law takes effect. In the meantime, Congress can do something, or it can do nothing, Democratically controlled states can step in, or not. If lawmakers move aggressively and fix it in advance, great. If they don’t and then in 2014 the reforms start to wobble, Congress will do something, or a lot of states will pass their own laws to broaden the risk pools, and things will settle down. That’s my hunch at least — that if the policy becomes unsustainable, then the politics of not fixing it will be unsustainable too.

Presumably that’s why President Obama’s telling his supporters he might have to “revisit” health care in his second term, rather than, say, in the middle of the campaign, when he’ll probably want to avoid using the word “mandate” altogether. If he loses, then of course the mandate’s probably dead. But in that case, it stands to reason that the mandate and much of the rest of the law will vanish anyway, regardless of what the Court does. Which I guess is a long way of saying there’s an appeal to both approaches but it’s the sort of problem that, perhaps inelegantly, will eventually solve itself.

I expect, as I think most of us do, an unfriendly decision (from the Democratic point of view) on the health-care law. Can’t yet say how unfriendly; at the very least, an overturning of the individual mandate, and maybe more. Assuming that’s correct, the question immediately becomes how the president and the Democrats should respond. There’s very little they can do legislatively. But I’ll be watching for rhetoric, tone, even body language. And on those counts, they had damn well better dispense with the usual liberal woe-is-me hand-wringing and shoulder slumping and come out swinging. They had better communicate to their base that they stand for something, it’s important to them, and they’re pissed. And if they do it the right way, they can make the Supreme Court an issue this fall in a way that might even persuade some swing voters that the court overstepped its bounds. I’d go so far as to say that an aggressive response can reset and reframe the whole health-care debate, once Americans have had their minds focused on this by a blatantly partisan court…

[Obama] needs to stand up there and get mad. The law may be unpopular, but he and the Democrats are stuck with it, and being stuck with it, they need to stick by it. Almost never before in American history has a Supreme Court taken a law duly passed by the people’s representatives and in just two years’ time invalidated it. If that isn’t legislating from the bench, what is? Mr. Cool needs to get Hot. Against unanimous and ferocious opposition, and in the face of blatant lies about what this bill would and would not do, he and the Democrats came up with a way for people with cancer and diabetes and what have you to get the treatment they need and not be either turned away or gouged. He’s proud of that, he ought to say, and by God, he’s going to fight for it. That provision of the law is wildly popular—85 percent supported that, in a late-March New York Times survey. If you can’t play offense with 85 percent of the people behind you, I give up.

Via Mediaite.

• Sebelius touts ObamaCare as a boon to graduates instead of the war on the young it actually is
• Chuck Todd: The Obama administration is trying to “criminalize journalism”
• Yet another union boss takes umbrage with ObamaCare

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