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Don't Give the Roberts Court the Chance to Kill Health Reform

4 years ago
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Searching for health care votes with the desperation of...well...a family without medical insurance trying to pay a hospital bill, Nancy Pelosi must find the temptation nearly irresistible.
With skittish House Democrats reluctant to ratify the heavy-handed compromises in the Senate health care bill such as the reviled Nebraska-only Cornhusker kickback, Pelosi is beguiled with a parliamentary gambit that would avoid such an awkward vote. Under a congressional sleight-of-hand called "deem and pass," House approval of fixes in the Senate bill (including rescinding the Cornhusker kickback) would be considered identical to actually passing the politically troublesome original Senate legislation.
If you are confused at this point -- and who can blame you -- here is a career tip: Do not expect to ever be a congressional parliamentarian.

The political appeal of this tactic for House Democrats in dicey re-election fights is that they could claim with a "Who me?" straight face that they never voted for the Senate bill. Under the finger-pointing "you did it too" playground rules that govern Capitol Hill, Democrats can also persuasively argue that Republicans employed the same procedural shortcut dating back to the days when Newt Gingrich was speaker. On Thursday, by a 222-203 vote, the House tabled a Republican amendment that would have banned the use of deem and pass for Sunday's expected showdown vote on the health care bill.
So while the Rules Committee has yet it to make it official, the smart bet is that the House leadership will sidestep a direct up or down vote on the Senate health care bill. Under the short-term thinking that dominates Washington, employing deem and pass qualifies as clever politics -- especially if it provides a way for Pelosi to pick up an extra vote or two.
But, in truth, this maneuver could be the prelude to a Pyrrhic victory for Barack Obama and the Democrats. The reason: The last thing that the president needs is to give the Republicans another reason to challenge the constitutionality of the health care legislation before the conservative Supreme Court.
There already exists the likelihood of a long shot legal challenge to the bill's mandate that individuals either obtain health insurance (often with the help of federal subsidies) or pay a fine for not having coverage. That small legal risk has always been unavoidable since an individual mandate is built into the framework of the Obama health care bill. For there is no way to come close to achieving universal coverage (the revised Obama bill would protect 95 percent of the legal residents of America, according to the Congressional Budget Office's Thursday update) without an individual mandate or a government-run health care program.
In contrast, there is no substantive reason other than political gamesmanship to risk Supreme Court review over the House's probable use of deem and pass. In an Op-Ed article in Monday's Wall Street Journal, conservative Stanford University law professor Michael McConnell argued that deem and pass "may be clever, but it is not constitutional." That is not the mainstream legal view since traditionally the Supreme Court has been reluctant to decide purely political questions like the validity of the internal rules of Congress.
The problem is that the Supreme Court, under Chief Justice John Roberts, is fast earning a reputation as the most political court since the 1930s. In January, the Roberts Court in a 5-to-4 decision in the Citizens United case abandoned a century of legal tradition by overturning the campaign finance laws that banned direct corporate involvement in political campaigns. When Obama denounced the decision in his State of the Union Address as opening "the floodgates for special interests...to spend without limit in our elections," Justice Samuel Alito was caught on camera mouthing the words, "Not true. Not true."
Then just last week, Roberts speaking at the University of Alabama Law School, expressed his dismay over Obama's remarks at the State of the Union. "The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court -- according to the requirements of protocol -- has to sit there expressionless, I think is very troubling," the chief justice said in response to a question. And Ginni Thomas, the wife of Justice Clarence Thomas, has just gone public as the president of a new nonprofit group, LibertyCentral, designed to "serve the big tent of the conservative movement."
Yes, a counterargument can be made on each of these points, with the exception of the Alito pantomime. The Citizens United decision can be viewed narrowly as a ratification of the conservative doctrine that corporations have individual rights in the political debate. Roberts has a point when he complains that the Supreme Court is expected to make a symbolic appearance at State of the Union addresses that have become almost as political as national conventions. And Ginni Thomas, who was a conservative activist before her husband was appointed to the Supreme Court, is just the latest Washington spouse to implicitly argue that she should not give up her own political rights because of a retrograde interpretation of conflict of interest.
But taken collectively, these recent events underscore the aggressively conservative tilt of the Supreme Court. It is worth recalling that three current sitting justices (Antonin Scalia, Anthony Kennedy and Clarence Thomas) were part of the 5-to-4 majority in the most political decision in modern Supreme Court history – Bush v. Gore,which effectively ended the 2000 election recount.
In their zeal finally to pass health care reform, do the House Democrats really want the Roberts Court to rule on the constitutionality of deem and pass? For that matter, do House Democrats really believe that this legislative shell game will inoculate them from Republican attacks over the health care bill? With deem and pass, Democrats will be, in effect, arguing, "I voted against it (the Senate bill) at the same time I voted for it (with the fixes)."
At its core, the health care bill is designed to reinforce the social safety net by protecting Americans from unnecessary financial risks in obtaining health care. It seems strange to risk the legitimacy of the health care bill by passing it in a way that all but guarantees a trip to the most conservative Supreme Court since the 1930s.

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