Friday, March 30, 2012

Administration defense of the Affordable Care Act

As a former enthusiast for Barack Obama’s 2008 campaign and as someone approaching most political questions from the far left, I register here my dismay at the case prepared by Mr. Verrilli and Mr Kneedler to support the Affordable Health Care Act. Good friends who are accomplished lawyers tell me that the SG and ASG are indeed among the best of the nations lawyers. I am also not a lawyer. Nonetheless, it is clear to me from what was presented on the media I’ve seen that both the SG and the ASG were unconvinced of the constitutional foundation of the ACA. Their argument failed even to convince me of its constitutionality.

Ironically, the unconstitutional part of the law is actually a conservative republican idea that the president was forced, against his better judgment, to admit because he began negotiations by taking most reforms worth achieving off the table before any negotiations took place in Congress. The defense given repeatedly by the Administration is that the ACA does many good things. Perhaps that is true. However, if as seems likely, the five conservative justices declare the individual mandate unconstitutional, then we are left with a skeleton from which most of the good things in the bill have been removed.

I don’t know why the arguments presented by the Administration were not better prepared. I suspect it is a combination of factors, including the sense that the ACA itself is deeply flawed together with the national inattention of the President for the detail necessary to ensure that the Act will be declared constitutional, which led to a pathological combination of overconfidence and insecurity. At least that is what came across. How else could the Republicans find so easy a path to ridicule the Administrations presentation (ie., the clinking of glass and repeated “excuse me” from Verrilli). The SG’s closing remarks were typical flimsy liberal argument so pastiched by right-wingers over the years. Nowhere was there evidence that the Administration understood that the right wing plays hardball. No mention of the underlying constitutional issue. In short, it failed even to convince me that the law really is constitutional. It is difficult for me to imagine a worse argument, or to think of the SG and the ASG as anything but rookies. I am deeply embarrassed and shamed.