Sunday, June 24, 2018

Tables have turned in health care legal drama

WASHINGTON — With the Supreme Court set to render judgment on President Barack Obama's health care law as early as Monday, the White House and Congress find themselves in a position that many advocates of the legislation once considered almost unimaginable.

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. Rep. 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 years.

A White House that had assumed any challenge would fail now fears that a centerpiece of 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 past 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 every reason for confidence given decades of Supreme Court precedents affirming Congress' 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 interpret those precedents differently or discard them.

David B. Rivkin Jr., who filed a challenge on behalf of 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 have not 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.

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