“Keep it on the books long enough to star in attack ads”
by digby
There’s been a lot of head scratching over the latest Obamacare appeals court ruling, with people wondering why the panel headed by right wing warrior Lawrence Silberman wouldn’t strike down the law. It’s pretty to think this court isn’t at all political and just calls it like it sees it, but sadly, that’s just crazy.
This is the most interesting analysis I’ve heard:
Noah Feldman, a Harvard law professor and legal historian, pointed out that while the dissenting judge in the Appeals case, Brett Kavanaugh, is a conservative George W. Bush appointee, he didn’t strike down the Affordable Care Act. Instead, he argued the Court had no jurisdiction because the tax (or penalty) for not purchasing insurance had not yet kicked in, appealing to the Anti-injunction Act, which says citizens can only challenge taxes after they have paid them. He effectively outlined a way for even the most rock-ribbed conservative justice to delay the decision on the bill until after the presidential election.
“What Judge Kavanaugh is doing is sending a message to Kennedy saying, ‘You don’t have to decide the case. You can defer this thing.'” Feldman said. “The Obama administration [by pushing for a Supreme Court review early] was clever,” because Republicans have to choose between getting rid of a law they despise as soon as possible, and keeping it on the books long enough to star in attack ads.
This dynamic — where the president publicly spars with the judiciary on major policy matters — hasn’t really been witnessed since The New Deal. “This is the first time since the 1930s that you’ve had an extended clash between a progressive president and a narrow conservative majority on the Supreme Court,” said Jeff Shesol, an historian who wrote about FDR’s “court-packing” plan in his 2010 book “Supreme Power.”
“What the ruling today says, and what other rulings upholding the Affordable Care Act have suggested, is that it is within the power of Congress to deal in this way with this national problem. The national government has the ability to deal with an obviously national problem. Which is the fundamental question that gripped in the country in the 1930s.”
On the other hand, the comparison between Obama — who has disappointed much of the left with the relatively cautious nature of his agenda and a kid-gloves approach to negotiating with congressional Republicans — and FDR doesn’t quite work.
Whereas FDR had enormous personal popularity behind him, which helped turn public sentiment sharply against the high court as it began to strike down New Deal legislation, Obama’s poor approval numbers — and the even more tepid feelings of voters toward the health care law — mean the justices (and moderate “swing vote” Anthony Kennedy in particular) need not fear a populist uprising; they can make as deeply ideological a decision as they like.
“After Bush v. Gore, the most overtly political decision in Court’s history, the Court suffered zero dip in the public’s mind,” Feldman said. “If Kennedy wants to strike down the health care law, he’s not going to worry the Supreme Court’s legitimacy is in question.”
Sounds right to me.
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