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Has Obama Snookered SCOTUS Into Declaring the Right Wing Agenda Unconstitutional?

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Health care reform (the Patient Protection and Affordable Health Care Act, aka, "PPCA") is President Obama's most important domestic achievement, providing a means to ensure health care coverage for an estimated 92 percent of non-elderly Americans while reducing costs in the health care system.

The individual mandate, the focus of the right-wing attack against the PPCA, was originally proposed by the very conservative Heritage Foundation in 1989; it was introduced into Congress by the late Republican Senator John Chafee (R-RI) in 1993, with such conservative co-sponsors as Orrin Hatch (R-UT) and Charles Grassley (R-IA).

President Obama reluctantly embraced the individual mandate as other more straightforward solutions, such as "Medicare-for-all" or the "public option," faced obstruction in the Senate.

This coming week the Supreme Court is expected to hand down its decision on the constitutionality of the individual mandate, as well as other provisions of the PPCA. The betting in legal circles is that the Court will strike down the mandate, and leave the rest of the law intact. [We make no predictions, and believe the Court should uphold the law in its entirety both for the health of our citizens and fealty to the Constitution. The mandate and the law are clearly constitutional; but, who can determine the jurisprudential integrity of this Court?]

In conservative policy circles, the idea of a mandate is not unique to the purchase of private health insurance for those under 65. For example, the Ryan budget calls for ending Medicare in favor of vouchers, and for the elderly to use those vouchers to purchase health care from private insurers ("Voucher-Care"). How is this different from the PPCA, other than that Voucher-Care would cover those 65 and over? Indeed, Ezra Klein, provides this description of the Ryan plan:

The federal government subsidizes Americans to participate in health insurance markets known as 'exchanges.' Inside these exchanges, insurers can't discriminate based on pre-existing conditions. Individuals can choose to go without insurance, but if they do so, they pay a penalty. To keep premium costs down, the government ties the size of the subsidy to the second-least-expensive plan in the market -- a process known as 'competitive bidding,' which encourages consumers to choose cheaper plans.

Sound familiar? It should. It is what Romney passed in Massachusetts, what President Obama and the Democrats passed for the under-65's, and what Ryan would like to impose on the 65's and over who today, thanks to Medicare, have single-payer, universal health care.

So, if the individual mandate is declared unconstitutional by the Supreme Court, then so are the radical right's plots to undermine Medicare and replace it with Voucher-Care.

Or, consider the radical right's ambition for Social Security. They want to privatize it, i.e., have the payroll tax contributions that currently go to the Trust Funds, instead flow into private, individual accounts, earning interest from private banks and/or invested in private stocks and bonds that, the proponents concede, must be limited to minimize capital risk. Again, as with Voucher-Care, this would have to be mandated so the money is unavailable to the owner until age 65, and then paid out in monthly amounts. How is this not an individual mandate?

Thus, both the Ryan plan for Voucher-Care, and the radical right's ambition to privatize Social Security depend on individual mandates.

If the Supreme Court decides to invalidate the individual mandate in the PPCA -- which has to be the most benign mandate one can imagine, with penalties being small fines and with prison terms being specifically excluded -- the Court will also have eviscerated the core of the radical right wing domestic agenda to undo our Social Security and Medicare systems.

Let us be clear. If the Supreme Court upholds the PPCA, including the individual mandate, it does not mean that Voucher-Care or Social Security privatization are good policies -- indeed, they are each very bad policy -- only that, to be consistent, they would not be prohibited by the Constitution.

Prior to the rise of the modern radical right, there had not been a concerted strategy by any faction to control the court politically. Conservative presidents chose Republican-leaning justices and liberal-presidents chose Democratic-leaning justices, but, to a remarkable degree, when the justices assumed their positions, they interpreted the law as they saw it, in light of text, history, precedent, logic and their own experiences.

By contrast, the modern radical right is implementing a plan to take over the judiciary so that it can obtain rulings that fit a pre-determined ideology. Thus, the selection of Justice Scalia, with his own peculiar notion of jurisprudence, was not viewed in isolation, but rather part of a long-term strategy to seize control of the judiciary. The nomination of Harriet Myers (the woman who considered George W Bush the "smartest man she ever knew") was attacked by the right wing because she had not been nurtured through the "Federalist Society" that told judges and justices how they were expected to decide cases. Even President George W. Bush's assurance that he knew that she would never change her mind about anything was not enough to convince them that she would not vote independently once she ascended to the Court.

Now, their own Justices, without even realizing it, are poised, if they can convince swing-Justice Anthony Kennedy, to strike a dagger into the heart of radical right wing domestic policy. In a way, they should have realized this, because the president's individual mandate arose from their own institutions. Funny, hatred and fervor can be so blinding.

Could it be that the radical right has been "too-clever-by-half," and that President Obama has snookered the conservative Justices to destroy the very ideology they were sent to the Court to champion?

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