A busy week for activist judges, carving up Obama's health care law
Winners and Losers: The Supreme Court's activists (the conservatives) strutted their stuff in questioning the Affordable Care Act, sending their supporters into victory lap mode. Back here, Rob McKenna is probably fine either way.
This week's big political story has national and local ramifications. The U.S. Supreme Court took up the case of America vs. Obamacare. There were multiple big winners coming out of the public hearings, the first being the Supreme Court itself, which is re-establishing itself as the Big Dog of the three branches of government: It ain't law unless we say it is.
Second, the conservative-activist court seemed to be on full, confident display, legitimizing the arguments against the mandates. If nothing else, the court hearings reaffirmed that there is a legitimate Constitutional debate, and that the challenge from the states' attorneys general was hardly frivolous, as some on the left had claimed.
Still, given the election decision in 2000, one remembers that politics can trump the Constitution. That and the fact that Justice Antonin Scalia spent the hearings spouting GOP talking points and worried that Obama was going to send him to federally mandated fat camp.
The week's hearing also spooked progressives: Jeffrey Toobin predicted doom for health care; some on the right started taking (premature) victory laps; Democratic consultant James Carville said losing would be better for progressives anyway; and Michael Kinsely speculated that the court might be rolling back more than health care, but 70 years-worth of other laws. In short, the sky is about to fall on liberalism.
Washington attorney general and Republican gubernatorial candidate Rob McKenna, who signed on to the Obamacare challenge, has major skin in the game. The court's decision could have an impact on the governor's race here. If the court upholds the Affordable Care Act, McKenna's side loses, but that would also take him off the hook from potentially alienating some of the swing Democrats and independents McKenna is trying to attract (no harm, no foul). He can simply say he lost a principled argument in court and let Obama care kick in.
If McKenna's side wins, however, he gains the Constitutional argument, but is then faced with having to come up with a viable alternative that will work in Washington state. He'll have to appease angry progressive voters, and as Carville has suggested, McKenna's Republican party will then "own" the health-care cost problem. McKenna wants to bring down the health-care slice of the state budget, but without some kind of comprehensive reform, that could prove difficult, especially if mandates — state and federal —are tossed out.
McKenna's own reading of the court is that the hated mandate will die, but other provisions of Obamacare will live and that the court will act with some restraint. It remains to be seen if that's an oxymoron or not, but it could be the kind of carefully parsed political outcome McKenna relishes: having it both ways.
Since we're on the subject of McKenna, he had a winning week in other campaign news. Jay Inslee finally agreed to a debate (McKenna wants 15), Inlsee reversed himself and embraced a McKenna-backed education reform on teacher evaluations, and the Democrat decided not to back a marijuana initiative. McKenna is getting to set the rules of the campaign and is nudging Inslee to the right.
More winners and losers of the week:
Loser: Obama committed a classic gaffe, telling the truth in front of a live microphone, saying he'd have more flexibility negotiating with the former Evil Empire after the election. No surprise, absolutely true, but it should have remained unspoken because it played to the right-wing meme that Obama's a commie-loving socialist Kenyan revolutionary from the '60s who just can't wait to give America away to its enemies.
Loser: Romney pounced in order to capitalize on the president's gaffe, but turned his pounce into another Romney blunder by announcing that Russia was "our number one geopolitical foe." This was news to both the Russians and the Axis of Evil. And surely the Chinese are asking, "What about us?"
Romney's gafferama also continued unaided this week, including a "humorous" anecdote about his father laying off autoworkers and the revelation that his new home will feature an elevator for his wife's Cadillacs. After all that, Arlen Specter came out with a comment that might spur your desire to have this image wiped from your memory: "Mitt Romney," he said, "has changed positions more often than a pornographic movie queen." In religion, he follows the Book of Mormon; in politics, the Kama Sutra?
Winner: Hoodies. Geraldo has apologized (sort of) for saying that brown people who wear them are just asking to be shot; a Congressman was removed from the House floor for wearing one. I suspect they must be out-selling the Etch-a-Sketch this week.
Loser: First Congressional District candidate Darcy Burner who, like Miss Seattle, discovered that old Tweets never die. Burner committed a sin by calling Obama the "R" word ("Republican"), a common pouty lefty complaint. More bad news: she's in a wrestling match with fellow former Microsofter Suzan DelBene, who picked up major labor endorsements in the district this week.
Winner: Cars in Seattle. The Washington State Department of Transportation released images of what the new 520 bridge will look like — call it the Great Wall of Lake Washington. Or the Lake Washington Viaduct. The spirit of R. H. Thomson is alive and well.
It's also inhabiting the body of Mike McGinn, who's figured out that potholes and road repair are the way to the peoples' hearts. McGinn announced his "Focus on the Basics" campaign, which sounds like the post-it note your campaign consultant sticks on your bathroom mirror ("Message: I care"). Announced McGinn, "Whether through large scale roadway projects or filling potholes, we're working to enhance Seattle's roads." It's the potholes, stupid!
Winner: Bill Ruckelshaus, for his first-time, first-person account of Watergate's Saturday Night Massacre published here on Crosscut. The massacre was a pivotal event in the downfall of Richard Nixon when principled members of Nixon's own administration took a stand against presidential overreach. As the 40th anniversary of the Watergate break-in approaches this summer, it's good to have key scandal figures (good guys and bad guys) give insider accounts and remind people of this turning-point crisis in American history.
Knute Berger discusses the news of the week on a KUOW Weekday roundtable led by KUOW's Steve Scher at 10 a.m. on Fridays. Hear it at KUOW 94.9 FM or online.
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Comments:
Posted Fri, Mar 30, 7:23 a.m. Inappropriate
The author seems taken aback by how that court is dealing with these legal challenges. That bench is just going about considering whether aspects of this federal legislation pass constitutional muster. There’s absolutely nothing odd or different about how this law is being reviewed; when new laws are challenged all courts operate from the position that “It ain't law unless we say it is.”
Moreover, during oral argument courts SHOULD question attorneys using the arguments the opponents raise. The mandate features at issue are unprecedented. Putting the government lawyers on the spot to respond to the legal challenges raised against them is not “legitimizing the arguments against the mandates”, it’s simply a normal part of appellate litigation.
You want to see extreme examples of aberrant conduct by an appellate bench? Here is a critique of how this state’s highest court engaged in entirely corrupt behavior in four cases with vast importance to millions of people around here:
http://susan-owens.webs.com/
Those are flat-out abuses of power. Our state’s justices routinely disregard controlling legal authorities and misrepresent the claims raised against governments’ actions. Those are examples of a pattern of dishonest conduct. They established the case law principles Sound Transit now uses to abuse individuals and families financially, and keep itself immune to any efforts by people to control its policies or management by political means. In contrast, nothing that happened this week in DC was an abuse of power.
Posted Fri, Mar 30, 7:31 a.m. Inappropriate
It certainly did in the 1930s, but do we want to live in a country where a majority in Washington DC can enact their every whim into law? And if popularity is the measure of good legislation, why should we push the Constitution and its system of limited government aside for the sake of a law that only about 40% of the population supports? This country desperately needs an overhaul of how we pay for health care, but it's not such a crisis that we need to accept the "Do something!" "Do anything!" approach adopted in this terribly flawed and overreaching legislation.
Posted Fri, Mar 30, 10:46 a.m. Inappropriate
A new day for Federalism, and say good-bye to McCulloch v Maryland. And the "coercive" power of "Your money or your life"? A new day for Federal grants to States. The balance of power among the branches of government is shifting, and not for the better.
Posted Fri, Mar 30, 12:55 p.m. Inappropriate
The sometimes insightful Walter Russell Mead:
"Cheap tricks might work to befuddle lazy reporters (or allow the ideologically committed to collude in the deception of readers for the greater good) but they won’t pay the bills or stop the inexorable rise in health costs. ...
In the real world it is impossible to avoid a significant government presence in the health care sector; from veterans’ care to pediatric care to the care of the poor, there are too many reasons why government at some level must ensure care to build a purely private health system.[????] ...
But our approach to health care must be to create possibilities and incentives for innovation and change, rather than to keep the current system alive by pumping ever growing volumes of money into it. Developing a highly efficient health care system is more important to the country’s future prosperity than all the high speed trains and “green jobs” boondoggles ever dreamed up. It matters more than almost anything else we do. ...
Health care reform must try to do a very short list of things very well; the longer these laws get and the more issues they try to take on, the more lobbyists and special interests are able to twist those laws toward their own limited ends...."
http://blogs.the-american-interest.com/wrm/2012/03/29/the-health-care-disaster-and-the-miseries-of-blue/
Posted Sat, Mar 31, 8:21 a.m. Inappropriate
How long before the Government will be the sole provider of Medical Malpractice Insurance?
Posted Sat, Mar 31, 11:30 a.m. Inappropriate
It took the court about 150 years to see where laws penalizing abortion were precluded by the constitution and roughly the same amount of time to see that police must advise arrestees of their right to a (taxpayer paid) lawyer and the right to remain silent. Those discoveries were written "between the lines" of the Constitution. The "government of enumerated powers" is there in black and white. So both the Warren Court and the Roberts Court can be called "activist" but that's just because you say so, Knute.
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