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March Madness

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To the people who cover Washington, we call it chronicling situational immorality, not since Bush v. Gore have we seen madness that could compare to last week’s Supreme Court debate over the constitutionality of the healthcare reform law.

While the arguments went on inside, for three straight days, thousands of people with all kinds of placards milled around the perimeter.

Their efforts were not aimed at swaying the justices, but in ensuring that they could go home feeling that everyone knew their opinion.

The proceedings last week were of similar hyperbole.

The key issue, in the minds of opponents of the bill, is the provision in the Patient Protection and Affordable Care Act that requires everyone to buy insurance or pay a penalty.

During the debate on the issue, Sen. Jon Kyl, R-Ariz., called such a provision “an assault on liberty;” he and his Republican cohorts assailed the provision as “un-American.”

Noting the second anniversary of its passage 10 days or so ago, Rep. Allen West, R-Fla., a Tea Party member, called it a “failure,” citing “skyrocketing healthcare premiums, putting patient choice under fire, putting retirement security in jeopardy, and resulting in costs spiraling out of control.”

While opponents have called it “Obamacare,” and blamed it on President Obama and Democrats in every vicious term imaginable, the fact is that the bill as written by the Senate that became law incorporates mostly Republican ideas dating from 1989.

Moreover, while Republican senators have been busily distancing themselves from it, reporters who covered the actual writing of the bill watched as Republican senators played as great a role, and, in many cases, greater, than the Democrats.

At the same time, the armchair legal analysts have decided, 51 percent to 49 percent, according to a Kaiser Healthcare survey, that the Supreme Court will throw out the hated mandate.

The problem with that is court watchers of all stripes believe just the opposite, that requiring people engaged in interstate commerce to do something is settled law.

For example, in the New York Times on March 19, an article on the mandate issue talked about a concurring opinion by Justice Antonin Scalia in a 2005 case dealing with regulation of home-grown marijuana.

Citing the penultimate 1943 case, Wickard v. Filburn, Scalia wrote that, “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”

It was a passage the Obama administration quoted prominently in a recent brief in the healthcare case, the Times said.

And a recent Washington Post outlook story on the issue quoted Walter Dellinger, a former acting solicitor general the Post called “one of the healthcare law’s most ardent constitutional cheerleaders,” predicted that Chief Justice Roberts will write the opinion,

 “The reason I think Chief Justice Roberts will write the opinion is because I think he will want to write a narrow opinion,” Dellinger said in the Post piece.

“It would recognize that there are limits on Congress’s powers, but that the Constitution’s commerce clause is fully met in a law that deals with the ‘intimately intertwined’ issues of healthcare, insurance and interstate markets,” Dellinger said.

Dahlia Lithwick of Slate repeated what was said in the Times article when she said that, “That the law is constitutional is best illustrated by the fact that—until recently—the Obama administration expended almost no energy defending it.”

Lithwick added that, “The current fuss being made over the healthcare cases has offered the court a perfect cover story.

“They will hear six hours of argument…They will pretend it is a fair fight with equally compelling arguments on each side. They will even reach out and debate the merits of the Medicaid expansion, although not a single court saw fit to question it,” she said.

In other words, move on. The emotion that has been generated over this legislation is prompted by the need for cynical politicians to obscure the fact that the policies they embraced over the last 15 years, including two wars, a disastrous tax cut and huge budget deficits designed to bailout the pharmaceutical industry, amongst others, were failures and led to the worst economic downturn since the Depression.


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