STOCK MARKET WATCH -- Wednesday, 28 March 2012

[Demeter]

30. Could Defeat in Court Help Obama Win? By ROSS DOUTHAT

http://campaignstops.blogs.nytimes.com/2012/03/27/could-defeat-in-court-help-obama-win/

If the Supreme Court decides to strike down the new health care law’s individual mandate to purchase insurance, it will represent a remarkable election-year rebuke for President Obama – the rejection, by the nation’s highest court, of a central provision of his main domestic policy accomplishment. It might also help him win re-election. The unpopularity of the president’s health care bill is a settled reality of American politics. But as liberals have long hastened to point out, not every provision of the bill is unpopular. If you isolate the legislation’s various components, many of them poll reasonably well.

The individual mandate, though, tends to be far less popular than the legislation as a whole. In a recent Reason/Rupe poll, 50 percent of Americans had an unfavorable view of the health care legislation, while 62 percent believe the mandate is unconstitutional. In a Washington Post/ABC News poll, 42 percent of respondents said that the Supreme Court should invalidate the entire law – but another 25 percent said that the court should keep the law but throw out the individual mandate. The mandate’s defenders note that many Republican politicians used to support an individual mandate, and that what was once a fringe libertarian critique of mandates has only lately become the conservative party line. But while the Republican flip-flop is real enough, this wasn’t a case of conservative politicians kowtowing to radical ideologues. It was a case of conservative politicians recognizing – as had Obama himself, when he attacked Hillary Clinton for supporting a mandate during the 2008 Democratic primary campaign — that what looked like a “fringe” anti-mandate sentiment was actually shared by a large majority of Americans.
The fact that a provision is unpopular, of course, doesn’t make it unconstitutional. As the Duke University law professor Stephen Sachs argues in a recent paper, the case for the mandate’s constitutionality is “uneasy” without necessarily being wrong: Given existing precedents and current legal doctrine, it’s possible to find plausible justifications for the powers that the health care bill’s authors are claiming in this case...

...If the federal government can impose regulations and fines not only when people are engaged in commercial activity but as punishment for not engaging in a particular form of commerce as well, what precisely can’t it do? If the state can effectively “create commerce in order to regulate it,” as Justice Anthony Kennedy put it in during Tuesday’s oral arguments, then what limiting principle would prevent the Congress from, say, penalizing people for stargazing instead of renting movies, or walking to work instead of buying cars or using public transportation, or buying cheese instead of broccoli? Even the mandate’s defenders tend to concede that the provision rests on an extremely broad view of Congressional power. The New Republic’s Jonathan Cohn, for instance, argues that a broccoli mandate might be slightly too specific to survive constitutional scrutiny. But he acknowledges that under his view of the enumerated powers, “Congress could, for example, force everybody to obtain food vouchers, join a grocery club, or demonstrate they had plans for paying for their food — paying some sort of fine if they did not.” (And then of course those grocery clubs would be subject to federal regulation, which could presumably be tweaked to ensure that they mostly offered foods like … broccoli.) It’s precisely this specter of an unconstrained federal leviathan reaching into every area of life, from the auto dealership to the light bulb aisle, that helped spark the backlash against President Obama and the Democrats in the 2010 midterm elections. In effect, the country responded to a period of Democratic ambition by voting to constrain liberalism – and once that constraint was accomplished, they found themselves inclined to like their liberal president a little more.

One could imagine something similar happening with the individual mandate debate. If the Supreme Court invalidates the mandate, the justices’ traditional “presumption in favor of severability” will probably ensure that the rest of the legislation remains intact – which might reassure moderate voters that the health care bill wouldn’t actually trample their liberties, because the courts are on the case. Stripping away the law’s most unpopular component might make the rest of it marginally more popular. And setting a clear limit on liberalism’s ability to micromanage Americans’ private decisions might make voters feel more comfortable voting to re-elect their micromanager-in-chief...Obviously, eliminating the insurance mandate would create various policy headaches, because the legislation isn’t designed to work without one. (This is presumably why the Obama White House has taken the risky course of arguing that the mandate isn’t severable from the rest of the law.) But there are a number of potential workarounds available, many of which wouldn’t be seen as such an aggressive imposition on private liberty....

I'M NOT WORRIED...I'M SURE THAT ANY SOLUTION THE PRESIDENT PICKS WILL BE... TOTALLY WRONG.

"LEADERSHIP" IS DOING THE RIGHT THING; "GOOD MANAGEMENT" IS DOING THINGS RIGHT. I'M NOT GOING TO SPECIFY WHAT THIS ADMINISTRATION DOES,BECAUSE I INTEND TO STAY HERE....