Friday, June 29, 2012

Will It Be a Neo-Republi-CON Party-Line Vote?

UPDATE XI:  After the case that "could never be cited as precedent," did Chief Justice Roberts decide for the sake of the Court's public legitimacy and historic legacy, not to play politics with the decision?  Read the Washington Post, John Roberts, umpire and The New York Times, John Roberts’s Political Decision

UPDATE X:  Did the Supreme Court split the difference, by rejecting the Commerce Clause reasoning, but find the mandate is a tax?  This possibility was suggested before the ruling was announced.  Read the Washington Post, Four ways the Supreme Court could split the difference on health care.

UPDATE IX:  If the Supreme Court does overturn the health care law in the face of decades of precedent,would it be yet another case showing the "today's Supreme Court is moving toward the confederationist framework of protecting corporate interests. From its decision authorizing corporations to spend unlimited political money in the Citizens United case to its assaults on equal pay for women and job security for older workers, the Court's five conservatives have left no doubt about their willingness to obviate the commerce and general-welfare clauses of the Constitution to protect powerful corporate interests"  Read The Atlantic, The Real Affordable Care Act Battle: Constitutionalists vs. Confederates, which notes:

"[T]hat, throughout the last century, when the corporatist strand has conflicted with the state's-rights position -- from Lochner (in which the Court infamously overturned New York's public health regulations in 1905) to the current Court's reversal just this week of Montana's anti-corruption campaign-finance law -- the corporatist side has won.

Respected conservative constitutionalists have all but begged the Supreme Court to stay loyal to the document. Judge Laurence Silberman, a Reagan appointee who received the Presidential Medal of Freedom from President George W. Bush, warned that the case against the Affordable Care Act has no basis "in either the text of the Constitution or Supreme Court precedent." Judge J. Harvie Wilkinson III, a runner-up for the Supreme Court nomination that eventually went to Chief Justice John Roberts, warned that striking down health reform "is a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off."

During his confirmation hearing, Chief Justice Roberts claimed the mantle of these conservative constitutionalists, as an umpire calling balls and strikes. But if he and the other four conservative justices overturn the Affordable Care Act, they will effectively be taking the umpire off the field. In historical context, this amounts not to a reinterpretation of the Constitution but rather its rejection. If the law is upheld, the real victory is not for President Obama but for that most durable of governing documents, the U.S. Constitution."

UPDATE VIII: If the Supreme Court does overturn the health care law in the face of decades of precedent, will it be because:

"The post-New Deal consensus about the scope of federal power has broken down amid national, and global, concern over the welfare state’s cost and intrusiveness — a sea change of which the tea party is but one manifestation" or 

The 2000 presidential election was 'decided by five people, who don’t even try to explain their choice in normal legal terms. Then the beneficiary of that decision appoint[ed] the next two members of the court, who present[ed] themselves for consideration as restrained, humble figures who care only about law rather than ideology. Once on the bench, for life, those two actively second-guess[ed] and re-d[id] existing law, to advance the interests of the party that appointed them. Meanwhile their party’s representatives in the Senate abuse[d] procedural rules to an extent never previously seen to block legislation — and appointments, especially to the courts. And, when a major piece of legislation g[ot] through, the party’s majority on the Supreme Court prepare[d] to negate it — even though the details of the plan were originally Republican proposals and even though the party’s presidential nominee endorsed these concepts only a few years ago.' 

Read the Washington Post, Redefining American government through Obamacare and The Atlantic, SCOTUS Update: La Loi, C'est Moi.

UPDATE VII:  Republi-con only hate Obamacare because he passed it.  Read the Washington Post, Poll: Republicans hate ‘Obamacare,’ but like most of what it does.

UPDATE VI:  If it does overturn the health care law in the face of decades of Supreme Court precedent, then how to explain the change.  By creating a 'permission structure.'   Read the Washington Post, How Republicans made it possible for the Supreme Court to rule against the mandate.
UPDATE V:  "Bloomberg surveyed 21 top constitutional scholars and found that, while 19 think the individual mandate of the Affordable Care Act ought to be upheld on the basis of legal precedent, just eight think the Supreme Court will actually do so ."  Read the Washington Post, Poll: Legal scholars think the mandate is valid, will fall anyway.

UPDATE IV:  Citing The New Yorker article below, a writer asks what is going on in Washington.  He concludes, " — based both on [his] experience as a reporter in Washington and on an increasingly voluminous psychological literature about how partisans form opinions — is that human beings are very good at convincing themselves of whatever their self-interest would have them believe, and that Washington has become an increasingly sophisticated machine for encouraging and accelerating this sort of 'motivated reasoning.' That is to say, strategic incentives do drive shifts in opinion, but the new opinions are sincerely held.

This distinction is, I think, crucial to make, because there’s a real difference between bargaining with a political party that has fixed policies it would like to achieve but shifting strategic incentives and a party that has shifting policy and strategic incentives. In the former case, the fixed policy preferences give you something to hold onto, something you can use to fight against the shifting strategic incentives. In the latter case, there’s nothing to hold onto, and in a political system where elections are zero-sum and so compromise is rarely in the minority party’s strategic interest, it’s very difficult to see how many major compromises can be reached. This model, I think, does a much better job explaining the previous few years."

Read the Washington Post, The individual mandate: What happened?

And what is the Republi-con's interest, as noted in February 2009, Republi-cons hope Obama will fail.

UPDATE III:  Another Republi-con flip-flop, "the Development, Relief and Education for Alien Minors Act -- better known as the DREAM Act ."  Read the Washington Post, DREAMing of bipartisanship

UPDATE II:  Of course, the flip-flop is a tried-and-true Republi-con tactic,  Read the Washington Post,  A GOP bait-and-switch on disclosure. 

UPDATE:  So why did the Republi-cons propose a mandate?  Because "[i]t became pretty clear that, if you want a market to work, you need a mandate."  Read the Washington Post, Health reform without a mandate: Lessons from Washington state.

I say neo, the ancient Greek prefix meaning new or young, because Republi-cons were for the individual mandate for two decades, before they were against it.  To understand why they changed their minds, read The New Yorker, Unpopular Mandate.