Winners Win and Losers Lose

Stating the obvious, no matter how furiously the right-wingers spin their failure to destroy Obamacare in the Supreme Court, this is politically good for the President and the Dems and bad for the tea party and the Republicans. Had Obamacare gone down, at least this supporter of the President would have been severely demoralized. And I was not looking forward to an election based on a war against the Supreme Court. I guess the Right is free to go ahead if they want.

This election is still mostly about the economy and jobs. The recovery is slowly chugging along. Republican Governors hoping to be reelected are touting the recovery in their own states (two-edged sword, guys.) We just had another big jump on Wall Street because Germany got European finances sort of straightened out, again.

Roberts for the Win

"TEA PARTY DEFEATS OBAMA!" (not)

I did see the erroneous CNN banner this morning, but only after I had seen more accurate tweets so I wasn't too disturbed.

It's been a big day. I'll be brief and as Speaker Boehner cautioned us not to spike the ball (wait - that was for his tea party caucus!), I only note for the record that I did predict Chief Justice Roberts joining the majority for this way back in March (see here). Of course, no one ever predicts the Court dead on as they are always full of surprises. So I missed my 6-3. And I haven't read the whole case yet (it's been a busy day.) But I offer these preliminary comments.

Justice Scalia Frustrated and Annoyed

I met Justice Scalia once. It was at the dedication of the new federal court house in Albuquerque a few years ago. He was milling with the crowd as we had refreshments. Having never met a Supreme Court Justice, I went up and shook his hand. It was kinda creepy. I'll just leave it at that.

Scalia's impassioned dissent in the Arizona Immigration case indicates that the politically conservative jurist may be a little frustrated. Also, the separate dissents/partial concurrences of the other two conservative Justices, Thomas and Alito, indicate the conservative wing of the court is not well united. Having been quietly abandoned by their conservative Chief Justice Roberts joining the majority in this politically-charged issue, this all indicates to me that they may have lost to Obamacare. I still think it could be 6-3. I'll eat my words tomorrow as necessary.*

Darling, I Don't Know Why We Go to Supremes

So, the 11th Circuit strikes down the mandate to buy health insurance as "unconstitutional." Since the 6th Circuit already says it is constitutional, now we have a split in the Circuits that likely means the Supreme Court will actually hear it. (There is only a slight hope that the 11th Circuit en banc, that is, all the judges on the Circuit, rehear the case and overturn its panel  - then the Supremes could still dodge). I will keep following these developments and refer you to a great blog I read on this and other matters. And the anti-Obama-health-care-reform crowd sure wants to get it to the high court. Which, when you think about it, is kind of funny. (Hint: they usually don't like the Supreme Court telling us what to do).

And the Supremes

Billy Joel

The Deficit: Ryan's Gambit, the President's Check, and Mate Comes in November 2012

Heh, heh, heh. The President still has a few tricks up his sleeve. (Although I still think he's playing chess, rather than quick rounds of cards). I thought there was something more to this budget business. The Republicans refused to move first on the Health Care Reform (for decades, and decades, for that matter). So, when the Dems came forward, again, it was just too easy for the Repubs to stir up opposition with those predisposed to dislike the President when all we got, was a fairly centrist opportunity to help a lot more people get private health insurance. If you don't believe me, just look how angry those on the more progressive left are who wanted single-payer, government option (like Medicare). The law we got, including the mandate, is no more than the concept previously proposed by Republicans in the 1990s, by the Heritage Foundation, and, of course, Romney in Massachusetts. And as the Prez came out successful with Health Care Reform, now it looks as if he will do even better with long-term debt reduction.

Only One Right Way to Read the Constitution?

A friend showed me a good article by Jill Lepore in the New Yorker Magazine.  It is a good opening to consider how the US Constitution has been interpreted differently by so many different people with so many different philosophies. She even broaches the issue of dogmatic rigidity in some of those interpretations.  Her conclusion is:

"The Constitution is ink on parchment. It is forty-four hundred words. And it is, too, the accreted set of meanings that have been made of those words, the amendments, the failed amendments, the struggles, the debates—the course of events—over more than two centuries. It is not easy, but it is everyone’s. It is the rule of law, the opinions of the Court, the stripes on [former slave] William Grimes’s back, a shrine in the National Archives, a sign carried on the Washington Mall, and the noise all of us make when we disagree. If the Constitution is a fiddle, it is also all the music that has ever been played on it. Some of that music is beautiful; much of it is humdrum; some of it sounds like hell."

This brings me to consider the Constitutionality of the PPACA (Health Care Reform some of you know as "Obamacare").  I have read the two federal district court decisions finding it unconstitutional written by activist conservative judges (it goes both ways, people.  The most recent decision actually cites the Boston Tea Party for historical argument - if that isn't pandering political activism, I don't know what is).  I haven't yet read the decisions that find it constitutional.  It is anyone's guess how this will eventually work out in the courts but you can make some predictions.  These decisions will all be appealed to the Circuit Courts and if there is any division in the Circuits, the Supreme Court will then take it up. If the Circuits are all consistent in upholding or striking it down, the Supremes may stay out of it and decide not to review - but its more likely it will get to them eventually.  There is a lot of speculation out there as to how the Justices will decide with their various judicial philosophies and political persuasions.  And it's a pretty safe bet Thomas and maybe Scalia and Alito will strike it down as violative of the Commerce Clause - but even those last two give deference to Congressional enactments and Congress's own determination of what is Constitutional (and they lay it all out in the Act! Sec. 1501).  Ginsburg, Breyer, and probably Kagan and Sotomayor will likely uphold it.  Chief Justice Roberts is on the conservative side but he has an institutional interest in not interfering with the Congress anymore than necessary.  Justice Kennedy is the clear swing vote and looking at some analyses of his decisions on the Commerce Clause, he is likely to uphold Constitutionality.