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ThePlumLIneGS whorunsgov plumline
Posted at 08:36 AM ET, 03/30/2012

The Morning Plum: SCOTUS’s judicial activism

If the Supreme Court does strike down the individual mandate, the ultimate irony will be this: The very thing that reformers had hoped would make the quest for universal health care palatable to Republicans and conservatives will have proven its undoing.

This point about the individual mandate, of course, has been made before. But Jonathan Cohn and Paul Krugman both weigh in this morning with important pieces that draw out this irony in much sharper relief and take it to its logical conclusion. If the court strikes down the law, they argue, the only reasonable conclusion to be drawn is that conservatives who claim that they have no quibble with the goal of universal health care are simply looking for legal justifications for opposing any means to actually accomplishing it.

Worse, they argue, Court would be imposing its own political will in a way that rivals the worst displays of judicial activism in its history.

Cohn points out that opponents of the law have conceded that securing universal health care via a “tax” would be constitutional, but that they insist that a mandate that isn’t described as a “tax” is unconstitutional:

The plaintiffs have conceded that a universal health insurance program would be constitutional if, instead of penalizing people who decline to get insurance, the government enacted a tax and refunded the money to people who had insurance. As Sonia Sotomayor noted, functionally such a scheme would be exactly the same as the Affordable Care Act. Both the plaintiffs and some of the skeptical justices have also indicated that the Affordable Care Act would be constitutional if the law’s architects had simply used the word “tax” to describe the penalty.
Think about that for a second: If the justices strike down the Affordable Care Act, they would be stopping the federal government from pursuing a perfectly constitutional goal via a perfectly constitutional scheme just because Congress and the President didn’t use perfectly constitutional language to describe it. Maybe labels matter, although case law suggests otherwise. But do they matter enough for the Court to throw out a law that will provide insurance to 30 million people, shore up insurance for many more, and help to manage one-sixth of the American economy?

Meanwhile, Paul Krugman says the Justices’ line of questioning suggests they are looking for a way to realize the preconceived goal of striking down the law, and compares it to Medicare and Medicaid with a simple question:

Is requiring that people pay a tax that finances health coverage O.K., while requiring that they purchase insurance is unconstitutional?

The ultimate irony is that designers of the law opted for the latter course in order to get around conservative opposition to the former.

* GOP to pick major tax fight before election? A fascinating Politico scoop:

House Republican leaders are privately considering moving a politically hot debate on tax cuts to before Election Day, according to aides and GOP lawmakers who have been involved in conversations. It would be a high-risk, high-reward move for the party, focusing voters’ attention on its commitment to lower taxes but also potentially fueling Democratic claims that the GOP is looking out for the wealthy.

Color me skeptical that this will actually happen; both sides have their reasons for punting the actual vote on the Bush tax cuts until after the election, even if the rhetorical war over them will be central to the campaign.

ICYMI: The Senate is set to vote on the Buffett Rule on April 16th.

* Paul Ryan endorses Romney: In another sign of establishment support coalescing around Romney, Paul Ryan threw his support to the frontrunner this morning.

The DNC immediately rushed out a Web video lampooning their embrace, yet another sign that Dems hope Ryan’s Medicare plan — and the larger radical agenda it represents — will be a major albatross for Romney among swing voters in the general election.

* A cause for hope for Obamacare? Worth watching: Much scrutiny is falling on Justice Anthony Kennedy’s conception of liberty, and here, from scholar Helen Knowles, is one reason he may uphold the law:

“When you think about liberty relative to Kennedy,” Professor Knowles said, “the element most important to him will be the idea of individual responsibility. He thinks the government has the power to ensure that the responsible exercise of liberty be done in an educated manner.”

Or, as another scholar put it in 2010: “Justice Kennedy’s jurisprudence is a constant struggle to find the right balance between liberty and responsibility.” Kennedy may be aware that those who are not insuring themselves are having a broad impact in a way that’s unique to the health care market, and that restricting that behavior is legit for government.

* Romney set to wrap up nomination: A new NBC/Marist poll finds Romney beating Rick Santorum by seve points in Wisconsin, 40-33, in state where Tuesday’s primary is widely seen as Santorum’s last chance to derail Romney’s steady march to the nomination.

Key finding: Obama is beating Romney in the state by 17 points, 52-35, and while Romney will be able to reintroduce himself to voters once he’s the nominee, a majority also says the economy’s worst is behind them — a dynamic that Romney may not be able to alter.

* Romney’s dilemma in Wisconsin: National Journal gets this right: The base wants Romey to fully embrace Scott Walker’s anti-labor radicalism, but so doing could be toxic in a general election.

* Keep an eye on the Ohio Senate race: Real Clear Politics has a nice overview of the contest and why operatives on both sides expect it to be close, despite Sherrod Brown’s lead in the polls.

As I’ve been saying, outside conservative groups are dumping more money into this race than into any other in he country, and it may emerge as pivotal to Dem hopes of holding the Senate.

* Labor cranks up pressure on Romney: The AFL-CIO is amplifying its call on Romney to fire a labor adviser who has been implicated in charges of ethics violations involving the improper leaking of information about National Labor Relations Board cases to private sector lawyers.

It’s a bit surprising this story isn’t getting more attention. My previous wrap is right here.

* And Romney to accuse Obama of not being confrontational enough: Romney’s campaign is now letting it be known that he is planning to broaden his foreign policy critique of Obama. But if you read through that article, it sounds like Romney’s message will mostly boil down to the charge Obama hasn’t blustered and chest-thumped enough (a message that might not resonate with a war-weary public) and that he’s apologized for America to much (which he has never done).

What else?

By  |  08:36 AM ET, 03/30/2012

 
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