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MARCH 26, 2012 10:15AM

Why Obama Can Win Whatever SCOTUS Says On Obamacare: FDR

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 In 1935, the Supreme Court struck down many of FDR's programs on the basis of what is known as "substantive due process."

You don't hear that term used nearly as much as you did then, because of what happened next, which has a lesson for everyone drooling with fear and loathing or anticipation over today's  SCOTUS(Supreme Court, U.S.) hearing on "Obamacare's" constituionality.

That is because after the Supreme Court vaporized much of what FDR had been doin in 1935, it actually provided a nice foil for the President, although he eventually overdid that too.

In 1936,a fter having lost in SCOTUS in 1933, it was ver easy for FDR to campaign on the theme of a Republican Court, and wealthy elites, who were harming his efforts to help ordinary Americans cope with the Great Depression.

Sound familiar?

Thus, careful what Republicans ask for ought to be one their watchwords, for if they have excited their political base by bashing Obamacare, that's a two way street per President Obama's political base, especially because of its correlation relative to the Supreme Court with the President's base on Roe v Wade.

Social issues as well are not a one way street.

Thus, if even if SCOTUS makes some unfavorable declaration on Obamacare's constitutionality, more than likely the question of the use of the Commerce Clause (which personally I think is a horse that left the barn by criminalizing posession of a marijuana plant in your house for sole personal use, but the Drug Warriors have got our minds on that one, even though one could observe that cocaine is processed and so therefore a different kettle of fish), it remains the case that the President has hardly lost everything politically at least, should the Court hold adversely.

As a practical matter, if the Courts strike down Obamacare, revising the law to make it fit the ruling isn't likely to be very difficult as to tax liability, for example.

As to revision and Obamacare II, all you have to do is say that some portion of your federal tax liability and/or benefit status is contingent on your healthcare policy status meeting certain criterion, and getting credits for that, and that would sail through any court ruling today, as the tax code is regarded by Courts as mainly an administrative matter.

Of course the tax code wasn't made more central to Obamacare in the first place to avoid the impression that it was going to cost higher taxes, which to be fair to President Obama might be correct in a net long run sense, although that is almost impossible to explain in the 5 seconds one gets to say anything in the media right now.

Where was Ross Perot in all this, with such wonderful Powerpoints, and why do we as a species always so mock those who take the time to get things right?

On the raw political side of this, if the Court were to rule on "partisan" lines, that plays into the President's hands wonderfully, as then he can run to the electorate saying "Look at the Do Nothing Congress and the Do Nothing Courts, the latter of whom if I lose, will surely reverse Roe v Wade."

That's not all a bad position for the President to have staked out, although there is a warning from history as to FDR too.

FDR won a crushing victory in 1936 on the same types of themes, mainly the Court and the "One Per Cent," plus ca change, c'etet la meme chose, the more things change..., and then decided to punish the Court by enlarging it, since he claimed they were too old to do all the work that they had.

At first, the members of the Court didn't get the point, and actually went to FDR's people and showed them how vigorous they were, doing everything but pushups in the Oval Office.

Then they got the point, and in the "Switch in Time that Saved Nine" in 1937, reversed themselves, subtly of course, but lawyers excel at such things, and "constitutionalized" something similar that had gone on before, if the public backlash against FDR for that "Court Packing Stunt" was large too in the 1938 midterms.

Thus, however it plays out on the Court, it is likely to be the case that the Supreme Court won't have the last say as to President Obama's legacy, as that's always ultimately decided by the political system.

The President's understanding of that system, which since the President is the President, we can safely assume is as good as anyone on Earth.



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I think he can win with that sort of campaign, if people might not go for it in the face of the right Republican alternative of course. I just don't see it as all lose for him, per the FDR example.
I have to think about certain things as to your remarks on insurance, although there is a bad problem with preexisting conditions, the argument for using dedicated taxpayer revenues for such things as private markets will never be able to do.
It's argued as if it was a "liberty" issue, but it is a state's prerogative issue.
If the question of non-purchase of auto insurance became a national budget problem, then federal intervention is justified. To say one can opt out of buying and driving a car is specious and silly given the reality that one is generally required as a condition of employment and freedom of movement.

Because healthcare is THE reason we're having and facing more budget crises, it easily falls within the Commerce Clause. As the states have proven to be incompetent to resolve the problem, the federal gov can and should act. A little known and acknowledged fact is the states can opt out of the ACA IF they can match the same level of coverage and benefits. Put your state legislation where your mouth is, in effect.

Americans have long supported the idea of paying more tax if it means they get HC coverage. The objection is the idea of having to pay those proven private insurance thieves. Of course the Right's objection is ideological and ironic, considering the private purchase mandate is a Republican idea. Of the majority of Americans that don't like the ACA due to the PP mandate, 2/3rds of those think the law didn't go far enough, which is the "we wanted Medicare for all" sentiment, hidden and blended within the sort of apparent overall monolithic objection.

So, the pols weren't fearing a public backlash if it was Medicare+, they were fearing a corporate campaign funding backlash.

The idea that non-purchase isn't "economic activity" is also silliness driven by ideology. Until it can be assured that those who opt-out will turn down care when needed, that argument is junk. Junk that may prevail, given the political nature of the objection and the 5 political guys on the Court. If they were willing to create a case not before the court to cram the Citizens United decision down the vast majority's strenuous objection throats, they probably will be willing to create a new standard to knock-down a law that is constitutionally sound, but finds majority objection, the reasons for that not as directly favoring the case against, in essence.

It'll be interesting. Personally, given the Court threw out the Constitution to decide Bush v. Gore, thus ensuring more Federalist Soc justices, a repeat of the switch in time saves 9 is justified. We add two more justices who follow the Constitution instead of being drawn to impress their fellow Fed Soc cohort.
P.J. it is true that for certain medical contingencies, say bleeding and unconscious, one is going to receive treatment, and then there is an argument over the medical bill, in which the legal process comes in as to liens against the person for the bill, and how enforceable are those liens in terms of transactions costs, not small.
That's a version of moral hazard, possibly, if also a version of that problem for having taxes to pay for that set of contingencies too, although that's easier said than done in practice.
The Federal government can raise taxes and pay for things, like purchasing healthcare services under the General Welfare Clause, like Medicare and Medicaid. If it thought is more efficient, it could employ people and purchase facilities to do that.
Maybe it doesn't do that as to owning the means of production for the interest group reasons you say, maybe not, and that could be a good thing, or a bad thing. It depends on how you think that would really work in practice.
Unfortunately, the Obama people shifted their rationale, for reasons I don't quite get, and chose not to emphasize that it was a tax, stronger ground legally, if not politically, although, since there are no free lunches in terms of opportunity costs.... do voters really buy that? The politicians advisers seem to think so, although I think Lincoln would say otherwise too about all the people all the time, and, its not as if the Republicans have won on the argument of pushing government spending down to post WWII super low levels either.
The standard, in general, isn't what pols call it, it's whether or not it behaves like a tax. The argument that says it doesn't can get fairly complex and semantic. If ruling against, that has to be tailored very narrowly, or every yahoo tax protestor could gum up the revenue works.
The reality is that the uninsured get at least basic treatment for illness and injury. The cost is born by the local county and state governments as well as by those of us paying for health insurance through the insurance companies. I would rather pay a 3 or 4 % tax on my income than the over $1200 a month I pay now.
The Obama plan is cumbersome and designed to placate private insurance companies.
The constitutionality of it will be decided by five judges whose ideology is almost predestined to abolish it.