“What is of supreme importance in war is to attack the enemy’s strategy.” — Sun Tzu
Which means you have to know what the enemy’s strategy is. So just what do Obama and the Democrats want out of the SCOTUS review of Obamacare (ACA)?
There are three basic questions that the Supreme Court is trying to decide.
1. Should they decide now, or wait? (That was argued on Monday.)
2. If they decide now, then is the individual mandate unconstitutional? (Today.)
3. If the mandate is unconstitutional, then is it severable from the rest of the law? In other words, if SCOTUS strikes down the individual mandate, does that invalidate the rest of the law? (Tomorrow.)
For Obama, the ideal outcome is 1. Now. 2. Unconstitutional. 3. It’s severable.
In other words, the mandate goes away but the rest of the law remains in force. That makes private health insurance economically unviable, and the insurance companies will all exit the business or they will go out of business. At which point the Democrats will try to implement “single payer”, a total nationalization of the entire health care industry, financed by a huge rise in taxes.
Single Payer is what they always wanted. The bill wasn’t originally written that way, though, because they knew that even with twin Democratic majorities, there was no chance of passing it. So they included the mandate instead.
If the mandate is struck down, then Congress will have to act. There won’t be any way to repeal the rest of the law because Obama will veto, and the Senate will sustain the veto. The only thing he will agree to is implementation of single payer.
That’s why the arguments yesterday and today were feeble: Obama wants to lose the first and second questions. Tomorrow’s argument is about severability, and that’s the one to watch.
And it’s going to be interestiing, because Congress didn’t include a severability clause in the ACA, which is usually routine boilerplate. It was in there originally, but got removed before the law was passed. The Obama administration is going to argue that nonetheless it should be treated as if there was a severability clause, despite evidence of Congressional intent to the contrary.