07/01/2012 08:29 pm ET Updated Dec 06, 2017

BOTH SIDES : SCOTUS 'Hearts' POTUS on Health & Hispanics, But Confuses Metaphor With Reality on Personhood

It was a week when the Supreme Court made SCOTUSblog as popular as a hardware store after a hurricane. The Court issued three decisions with enormous impact both on democracy and 2012, including probably one of the three most important cases on the past 50 years. Ron Reagan and Kellyanne Conway sharply debate the effects of Roberts on Obamacare, Kennedy on Arizona and a still split 5-4 Court on Citizens United.

On Roberts and ACA.
Ron regards the 5-4 decision upholding the Affordable Care Act as "a huge victory for Obama and for the Court." In light of the PEW poll showing a sharp decline in respect for the Court over 25 years -- and because "this is the Roberts Court not the Kennedy Court," he says -- "the chief justice had to be worried about the legacy of a nakedly political decision, like Bush-Gore and Citizens United."

Kellyanne concludes that "Roberts upheld a statute that wasn't passed" because of his reliance on the tax and spending provision of the constitution rather than the Commerce Clause. She then uses the word "tax" eleven times to argue that Obama "lied" when he called it a 'penalty... not a tax." [The Host wonders: How similar is such parsing to when Romney as governor would refer to his "fees," not "taxes," a bi-partisan political reflex -- and the usual definition of a tax is when you seek to raise revenue, unlike a "penalty" designed to prod free-riders into the insurance pool. While this can be argued round or flat. Should the Roberts argument retroactively make Obama a "liar"?]

Along with Howard Dean, Kellyanne believes that the law's 50 percent-40 percent unpopularity will make it hard for Obama to run on. In a rhetorical faceoff between "no more big government" and "let's go forward and not relitigate the health care past," she thinks the former prevails; Ron, however, thinks that if Obama and Democrats explain its popular provisions -- on kids staying on parents' plans, preventive care, pre-existing conditions, insurance company abuse -- he can turn a sow's ear into a silk purse. But that's not easy, he acknowledges, because Americans don't like being told "you hafta... and the hafta mandate is what pays for all the other good stuff."


The two also mull these questions: a) Might the decision itself by the conservative chief justice take the sting out of GOP arguments that this law is nutty socialism? b) How can Romney bitterly attack a federal law so similar to his own in Massachusetts ("Everyone knows they're completely different," she says); and, more broadly, c) Why does America alone of all modern industrial countries not make health care a right? Kellyanne says it's expensive and inefficient -- Ron counters that it lowers costs, expands coverage, produces better outcomes and is popular where it exists in Great Britain and France.

[Host again: Since I predicted last week that the Court would uphold the law 5-4 and narrow the Commerce Clause as a sop to conservatives, let me agree with liberal angst that the case may have been a Pyrrhic victory and read as if it were written Ron Paul and John Calhoun. Yes Roberts' language whittling down the reach of the Commerce Clause was joined by the four conservative dissenters. Awful precedent? Since his Commerce Clause language had nothing to do with the conclusion that the law was constitutional, it should and will be regarded-by future courts as interesting dicta, especially in light of Justice Ginsberg's withering dissent about "broccoli."

Whether this libertarian view of regulation would take America back to before the New Deal, before the Progressive era, before the Civil War responded to states rights and nullification, indeed back to a version of "sovereign states" enshrined briefly in the failed Articles of Confederation, depends entirely on who the next president is and who gets to appoint one or two replacements of the five conservatives when they take their leave of the Court. Whether RNC chairman Antonin Scalia fulfills his political dream now depends on who succeeds him. That should certainly motivate each base!]

On Arizona Immigration Case. Ron maintains that the 5-3 majority decision by Justice Kennedy, based on federal preemption that Washington alone can make immigration and foreign policy not 50 separate states, gutted Arizona's key provision that sought to allow any cop to demand immigration papers from anyone on the street. While Section 2b did survive, allowing such a request after a stop for other suspected illegality, it could not be implemented based on racial profiling.

We discuss how Romney can keep supporting Arizona-type laws based on the argument that the federal government has failed to protect our borders when Bush43 and Obama doubled border security and illegal immigration from Mexico has fallen 80 percent in a decade. Kellyanne, who is a pollster, cites polls showing national support for Arizona's law. That's true, but what then of separate polls showing 2-1 approval of Obama's "Dream" executive order? Why is he beating Romney by 30+points? The two discuss how the GOP can reconcile its declining popularity among Hispanics and their growing percentage of the vote in elections. She disparages Democratic attacks on Republicans as "angry white guys" and believes her party can climb back since Latinos care about many issues more than immigration. Ron bluntly says that's impossible since GOP candidates "appeal to xenophobia and race, creating the image of a party not fond of brown-skinned people."

On Refusing to Reconsider Citizens United. In 1912 Montana passed an anti-corruption law to limit corporate election spending when an out-of-state copper baron in effect bought its legislature. This week SCOTUS struck down this law by refusing to reconsider its 2010 Citizens United decision by the same 5-4 lineup Is money speech and are corporations people? Kellyanne says sure. Ron blasts the original decision as "foolish and naïve" for assuming that corporations have the same speech rights as people and that "independent" spending can't be corrupting. If so, "can they can then run for public office?" His rhetorical question brings to mind a letter-to-the-editor from Ralph Nader this week in the Wall Street Journal. With undisguised glee, he quotes Chief Justice William Rehnquist, who in 1986 concluded that for the Court to make believe the corporations have human attributes and rights "is to confuse metaphor with reality."

The Host asks Ms. Conway if she worries about a system where a super-rich person can spend $100 million or a corporation with a billion dollars in shareholders' money to buy majority control of the House or Senate, or perhaps a presidential nomination? She responds that the solution is transparency so everyone knows who's giving what, which raises the question of why Senate Republicans filibustered to death the DISCLOSE Act.

Quick Take: Stoudemire's Slur. The NBA fined Knicks' Amare Stoudemire $50,000 for tweeting a nasty fan that he was "a faggot" -- which the fan then retweeted and made public. Should it have this power? Consensus alert: Yes, because this is not government censoring speech but a private group with rules about its employees/celebrities. Kellyanne agrees with that conclusion but questions what the standards are... and wonders whether anyone would be fined for calling Sarah Palin "an idiot"?

In Conclusion: We end with a clip from Bush43 communications director Mark McKinnon that the week's decisions show Obama as a strong and decisive leader, "the big guy in the big chair making big decisions, which is what voters want in a president." Is he right? Maybe, says Kellyanne, adding that he still won't be foolish enough to run on Obamacare since it already cost Dems the 2010 elections. Ron channels Douglas MacArthur -- "There's no substitute for victory."