PLANK JUNE 24, 2012
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If the Supreme Court justices decide to throw out the Affordable Care Act, even partially, we should be clear about the reasons for the failure. It won’t be because Justice Department lawyers bungled their job. Rather, the case will have been lost outside the courts. The White House and its allies in Congress are the ones who failed to do a critical part of their job: to explain and defend to the public not only how the law works, but the constitutional case for upholding it. Leading Democrats didn’t just fail at this task. They didn’t even try.
When Republican governors and attorneys general filed their lawsuit challenging the ACA, they knew that there was agreement among both conservative and liberal constitutional experts that their claims had little merit, in light of multiple decades-old precedents. So Republicans and their allies in the legal world organized a campaign to shift the legal—and, critically, the political—consensus. With characteristic acuity, the central legal architect of the Right’s strategy, Randy Barnett, predicted in December 2010 that, “if the Court views the Act as manifestly unpopular, there may well be five Justices who are open to valid objections they might otherwise resist.”
And so Republican editorial and op-ed writers, bloggers, and politicians synchronized their demonization of the ACA mandate, putting their constitutional critique front-and-center in their political attack. Indeed, the political and legal attacks were scarcely distinguishable. In the Right’s frame, the mandate is unconstitutional because it constitutes an “unprecedented” invasion of liberty; it compels all Americans to “buy a commercial product,” and to “enter commerce in order to regulate them”; and, because upholding it will inevitably lead to mandates to buy broccoli or health club subscriptions or burial insurance. Those legally flimsy but broadly digestible sound-bites were simultaneously a big part of their political pitch against the ACA. And that part of their pitch has gone almost entirely unanswered from defenders of the law.
Indeed, the Obama administration and its congressional allies famously declined to prioritize public defense of the ACA. After the law was signed and the opposition lawsuits were filed, the White House ramped up its ACA messaging operation. But even then, the near exclusive focus was to spotlight ACA benefits, with virtually no rap about why the law is constitutional. On March 21, 2012, a week before the Supreme Court argument, AARP’s Jon Rother accused them, on NPR’s All Things Considered, of being “missing in action” on the political messaging front. To this charge the White House’s health reform point-person Nancy-Ann DeParle, an accomplished expert in the details of health legislation and policy, demurred. “I don’t think that was our job,” she said. Meanwhile, progressive advocates spent less than one third as much on ads supporting the law—virtually none of that on its constitutionality—as was spent on ads making the contrary case.
Lo and behold. One month before the Supreme Court heard the case, Gallup reported that the ACA mandate was deemed unconstitutional by 72 percent of all those polled on the question. This includes 70 percent of independents, 56 percent of Democrats, and, most telling of all, by 54 percent of respondents who said they thought the healthcare law “is a good thing.” In other words, Republicans managed to prepare the political terrain so that sympathetic justices could feel emboldened to embrace their legal arguments.
In truth, this failure is only the latest expression of progressive reluctance to make constitutional arguments. That hesitation by liberals has essentially amounted to ceding the Constitution to their political opponents; Republicans clearly have no scruples about wrapping themselves in the mantle of the Constitution and the framers at every opportunity. Progressives must correct this chronic asymmetry if they harbor any hopes of saving contested legislative reforms, including landmark laws already on the books, from hostile judges and justices. Smart, well-founded, compelling legal and constitutional arguments must become a central part of progressives’ repertoire, just as they are for the Right.
Such a case could have been made for the ACA: The framers’ original Constitution—just as much as the post-New Deal precedents interpreting their work—require upholding the Act. The framers’ overarching goal was to replace the feckless Articles of Confederation with a system of government built to last, and built to work. No element of that design had a higher priority than what DC Circuit Senior Judge—and conservative icon—Laurence Silberman termed, in his November 2011 decision upholding the mandate, “the imperative that Congress be free to forge national solutions to national problems.” The framers did not intend a perverse misreading of the Constitution that would leave the nation impotent to reform a dysfunctional sector comprising 17 percent of the national economy.
The Obama administration did not make that argument in the run-up to oral arguments. But it might still have an impact going forward. Specifically, President Obama should respond to a ruling by the Court, win or lose, by explaining forthrightly that the Constitution empowers the federal government to meet urgent national needs—specifically, to correct chronic failures in a national market that causes 62 percent of personal bankruptcies, leaves tens of millions uninsured, and denies affordable health insurance for individuals with diabetes or asthma. Doing so will be essential to defend a favorable decision, or to support effective replacement legislation if the Court voids some or all of the law. More broadly, such an argument—linking an originalist constitutional narrative to the need to solve real-world problems—would announce that Democrats are finally prepared to beat-back constitutional challenges to other progressive measures.
The point is that the Right has coordinated its battles on constitutional terrain. If progressives (and moderates and even mainstream conservatives) do not respond in kind, reactionary judges will continue reshaping the Constitution into the caricature of the Tea Party’s imagination. And the charter for responsive governance that the framers intended and the courts, until now, have prescribed, will be lost.
Simon Lazarus is Senior Counsel to the Constitutional Accountability Center.
18 comments
"If the Supreme Court justices decide to throw out the Affordable Care Act, even partially, we should be clear about the reasons for the failure." (italics mine) You guys just can't wait, can you? Never in my forty-something years on the planet have I seen such an epidemic of journalistic premature ejaculation as there has been surrounding this whole ACA Supreme Court case. You called the White House legal strategy "disastrous." Well, no it ain't. At least not yet. If, as well it might, the Court upholds the ACA--the fact is that neither you nor anyone else toiling away in the Obamacare rumor mill has any solid, printable info on how Kennedy or Roberts plans to rule--than the WH's and the Solicitor's General strategy won't have been disastrous at all.
- AaronW
June 24, 2012 at 2:52pm
Forgotten news analysis headlines of history: The Allies' Disastrous Decision to Land at Normandy and not Belgium June 5, 1944 Orville, Wilbur Wright Choose Gasoline to Power "Aeroplane"--Ten Reasons Why Gas Will Never Fly December 1, 1903 Jonas Salk's Folly: Why a Live Polio Vaccine Will Make the Epidemic Worse February 3, 1954
- AaronW
June 24, 2012 at 3:09pm
then, not 'than'
- AaronW
June 24, 2012 at 3:16pm
So let's just be clear that we are faulting the White House and liberals in the non-partisan media for not monomaniacally issuing propaganda. We're not attacking the fallacious centrism that almost requires CNN to put up a warm body in the split screen against Randy Barnettas he peddles a entirely novel constitutional theory with no clothes. We are attacking Democrats for not raising $200 million more (from where? certainly not Congressional appropriations) to match Republicans who are spending with blank checks and ideological fervor to confuse the public. Or, better, to keep the public confused. The public is always confused. Fault the Democrats for designing the ACA so that it kicks in after an election and keeps people thinking nothing really happened or that it was already deemed unconstitutional. Don't fault Democrats for not operating Pravda on a billion dollar slush fund and for not having revived the fairness doctrine and the sedition acts. The latter are definite ways to keep Republicans from spinning their wheels in the crazy. With few tangible benefits already on the table, if Republicans decide that support for the ACA means you are not a Republican, low info "independents" are just going to go with the wind, which says "there is too much partisanship in Washington; people should put aside their differences and get along". And this explains the continued poor polling for Obamacare.
- chaitless
June 24, 2012 at 3:47pm
Aaron - well done, as always.
- Tristan
June 24, 2012 at 4:29pm
Also, chaitless!
- Sophia
June 24, 2012 at 6:38pm
I happen to agree with this article to the extent of having disappointment. For 8 years I had to listen to stupid justifications for things like "We are fighting them there so we don't have to fight them here" or "It's important to cut the taxes to make sure Washington, D.C., does not spend the surplus." For eight years I was numb with the stupidity and I was hoping to see plain sound reasons for doing things from President Obama. At the outset, the virtues of the ACA were drowned out by Republican shouters and the Obama administration fell short.
- Nusholtz
June 24, 2012 at 8:10pm
Agree with chaitless. The Dems are trying to defend a complicated health insurance reform position they should never have accepted and touted, rather than Medicare Part E for everyone, without a fight in the first place. Like it or no, there is a relatively small constituency for ACA. True, the Dems have done a terrible job of defending what insurance reform there is in the ACA -- but the basic problem is their leaders put themselves and their troops in the position of defending the indefensible. It's not that clear that the loss of the ACA via SCOTUS or Romney as Prez (or even BHO as Prez with Repubs controlling both chambers) is a disaster or a blessing (well disguised).
- drofnats1
June 24, 2012 at 8:40pm
Well, Nush, the topic of this essay is not the political sales job that didnt get done, it's the constitutional argument that didn't get made before the Court. Whether or not one believes that Obama should have better explained/sold the ACA to the American people, trashing the admin's legal argument before we know for sure that they've lost the case is, to my eye, a fairly clear case of jumping the gun.
- AaronW
June 24, 2012 at 8:44pm
I strenously object.
- CRS9TNR
June 24, 2012 at 8:48pm
You object to drofnats' statement, CRS, or to mine? I certainly object to drof's, bad-is-good theorizing. Drofnats' belief system is self-consistent, however it is predicated upon both the American people and America's particular system of government being different from how they are. There will be no revolution, drof, not even of the velvet kind. Thus bad is simply bad.
- AaronW
June 24, 2012 at 9:24pm
I continue to believe C.J. Roberts will join the majority in upholding the mandate and ACA but will write an opinion that will further limit the commerce clause (making implementation of not only ACA but Dodd-Frank problematic); a nominal victory for Obama but ultimately a defeat. Much like the opinion of C.J. Marshall in Marbury v. Madison. We shall see. In any case, Lazarus makes an extremely important point: the significance of popular will. Which is ironic, since the conservatives on the Court claim to be relying on events occurring over 200 years ago while actually deciding cases according to the latest opinion poll. Here's another irony: Democrats created the first and largest interest group for social welfare legislation, and that interest group, more than any other, will be responsible for an adverse result for ACA. As for ACA itself, I'm ambivalent. Expanding insurance coverage to millions would be an enormous accomplishment. And it's the central feature of ACA. Which is why the reformers were willing to base "reform" on the current system of private insurance. The secondary feature of ACA, coverage for individuals with pre-existing, mostly chronic, conditions, is great in theory, but not in practice. Not in a system of private insurance. And how do I know? We concluded long ago that private insurance is incompatible with the largest pre-existing, chronic condition: old age. The crisis in health care is the result of an explosion in the number of patients with chronic conditions, something that ACA can't and won't address.
- rayward
June 24, 2012 at 9:56pm
drofnats1: That wasn't ever going to pass. It would face united opposition from providers and doctors. Imagine $500 million in ads with doctors saying, "I'd love to treat this old woman, but I'm afraid I'll have to turn her away if Obamacare is passed." That sounds like a lame excuse to not pursue a policy, but as Cohn has documented lately, it's just not easy to reform healthcare. You can put your fingers in your ears and pretend that this is not the case...
- Virginia Centrist
June 25, 2012 at 9:13am
Rayward. I agree with much of what you say. Virginia. Had BHO made elimninating the Senate filibuster Job#1 in 2009, adequate stimulus and health care reform would have passed. Lame excuses are in the eye of the beholder. You are saying that the US is so inept that it cannot do in stimulus and financial reform what it did 70 years ago... and in health care what over 20 other industrialized countriesw have done. I think we would have passed comprehenbsive healthcare under proper leadership 3 years ago.. and can again. But not with the present Dem leadership. furthermore, a very cogent argument can be made that the US will fare poorly economically under Romney-- but still better than under BHO given a Repub House and perhaps even Repub Senate. You can cover your ears and shout LaLaLaLa... but it doesnt change the reality of the mess we are in or identify what exactly IS BHO going to accomplish if re-elected. Pass the AJA?? Really??? (and the AJA is inadequate to end this Recession/Depression in 12-18 months). Honest answer: little or no economic stimulus. And THAT makes you and others REALLY happy??
- drofnats1
June 25, 2012 at 2:49pm
Aaron Maybe I misread this:
- Nusholtz
June 25, 2012 at 3:56pm
Actually, read that as "open to invalid objections".. The court has always been more political than most tnr readers admit and this is a VERY political court. It may well be the only way to reform it is to add new moderate to liberal Justices..That won't happen if BHO is re-elected. (Do you really think the Repubs will allow ANY Dem SCOTUS appointment if BHO is re-elected??] If the Repubs win in Nov (a reasonable probability), they will further pack the court with justices of their extreme views. The only solution may well be be a Dem additional packing.. in 2016. Only a crisis and a good old fashioned political whipping will reform either party. I strongly suspect both parties will be reformed by politoical whippings between now and 2018--- and the Dems go first.
- drofnats1
June 25, 2012 at 6:50pm
That will happen if BHO is re-elected. In fact, it's the only way it will happen. The Senate would initiate a Constitutional crisis, but there's no way--no effing way--that a Supreme Court slot stays open. What is more likely is that a conservative doesn't retire between 2012 and 2016. But can you just imagine the opprobrium that Republicans would bring upon their heads if Scalia had a heart attack, vacating his seat, and their response was to keep that high profile slot open? It would be a field day. Democrats would campaign on Republican obstructionism and that would galvanize Dem turnout and force the media to report that Republicans were jumping the shark.
- chaitless
June 25, 2012 at 8:29pm
drofnats1: "Had BHO made elimninating the Senate filibuster Job#1 in 2009..." And how was he going to get the Senate to get rid of the filibuster, exactly? Especially when many Democrats favored retaining it? And when few people anticipated the extent to which Republicans would use it to obstruct? The process by which the rules can be changed is debatable. Most seem to think that rules can be changed by majority vote on the first day of the new Senate, in which case the filibuster couldn't have been disposed of until 2011--by which time Republicans controlled the House. So I don't see the window for more action that you assert.
- dsimon
June 26, 2012 at 12:30am