Supporters Slow to Grasp Health Law’s Legal Risks
By PETER BAKER
Published: June 23, 2012
WASHINGTON — With the Supreme Court likely to render judgment on President Obama’s health care law this week, the White House and Congress find themselves in a position that many advocates of the legislation once considered almost unimaginable.
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Demonstrators calling for government-run health insurance in 2009.
In passing the law two years ago, Democrats entertained little doubt that it was constitutional. The White House held a conference call to tell reporters that any legal challenge, as one Obama aide put it, “will eventually fail and shouldn’t be given too much credence in the press.”
Congress held no hearing on the plan’s constitutionality until nearly a year after it was signed into law. Representative Nancy Pelosi, then the House speaker, scoffed when a reporter asked what part of the Constitution empowered Congress to force Americans to buy health insurance. “Are you serious?” she asked with disdain. “Are you serious?”
Opponents of the health plan were indeed serious, and so was the Supreme Court, which devoted more time to hearing the case than to any other in decades. A White House that had assumed any challenge would fail now fears that a centerpiece of Mr. Obama’s presidency may be partly or completely overturned on a theory that it gave little credence. The miscalculation left the administration on the defensive as its legal strategy evolved over the last two years.
“It led to some people taking it too lightly,” said a Congressional lawyer who like others involved in drafting the law declined to be identified before the ruling. “It shouldn’t strike anybody as a close call,” the lawyer added, but “given where we are now, do I wish we had focused even more on this? I guess I would say yes.”
Looking back, Democrats said they had had every reason for confidence, given decades of Supreme Court precedents affirming Congress’s authority to regulate interstate commerce, and lawyers who defended the law said they had always taken the challenge seriously even if politicians had not. But they underestimated the chances that conservative judges might, in this view, radically reinterpret or discard those precedents.
Adversaries said the law’s proponents had been too attentive to liberal academics who shaped public discussion. “There’s very little diversity in the legal academy among law professors,” said Randy E. Barnett, a Georgetown University law professor and a leading thinker behind the challenge. “So they’re in an echo chamber listening to people who agree with them.” ( emphasis mine).
David B. Rivkin Jr., who filed a challenge joined by 26 states, said that extended across party lines. “Nobody in Congress is interested in constitutional issues,” he said. “The Republicans on the Hill were no better than the Democrats. It really was very late in the game when Republicans realized there would be no policy deal and began to look at the constitutional issues.”
Whether a different approach might have changed the outcome remains unclear. With the benefit of hindsight, some advocates said they would have been better off framing the law more explicitly as a tax, although doing so would have been politically explosive. Short of that, some said, strategy alternatives like slowing down the case still might not have made a difference.
And the Supreme Court may yet uphold the law, in which case the second-guessing in Washington will quickly transform into triumphant told-you-so’s. Ms. Pelosi, for one, has not retreated. “We’re ironclad on the constitutionality of the bill,” she told CBS this month. “I think we’ll be 6-3 in our favor.”
Democrats, and some Republicans, were so sure from the start because the concept of requiring Americans to obtain insurance or pay a penalty had originally been advanced by conservatives to avoid government-run health care. The Constitution authorizes Congress to regulate interstate commerce, but critics argued that rather than regulate activity, the law regulated inactivity — in other words, the choice of some Americans not to buy a commercial product.
Democrats who tried to warn their party of that risk were brushed off. When Michael Waldman, president of the Brennan Center for Justice at the New York University School of Law, wrote such an article in Newsweek in March 2009, a pair of law professors disputed him in print.
“It was so absurd a concept that the court would do this,” Mr. Waldman recalled. “Nobody thought it was unconstitutional until quite recently.” Even now, Mr. Waldman considers the law “plainly constitutional” based on decades of doctrine. “It’s just that you do have this increasingly activist court,” he said.
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