Former advisers are emphasizing the many aspects of the bill that are not connected to the mandate, like the subsidies to buy insurance. Some aides even argue privately that losing the mandate could be a political boon, because it would rob Republicans of their core complaint against the law.Yeah, that's what I've been saying. Plus, Obama would get a new issue: The Supreme Court has too many conservative activists and needs re-balancing; a Democrat should make the next appointment(s). And if the decision goes the other way, Romney will have the corresponding arguments: 1. We need a President who will sign the repeal of Obamacare, and 2. The Supreme Court has too many liberals who don't respect the Constitution and we need a conservative President to re-balance it.
Back to Kantor:
Before he became president, critics said that Mr. Obama’s greatest achievement was his own rise, that he played it safe — sometimes voting “present” in the Illinois State Senate — rather than taking risks for what he really believed....Well, if he loses the Supreme Court case, he's got to pick himself up and look like he's ready to keep fighting. Both candidates will say they're the one to redo health care reform, and Obama is going to need to say he's the one we ought to trust. He can't be a sadsack about how hard he worked and now it's all lost. He can't be all: I could have listened to Rahm and Joe... I could have coasted a voted 'present'...
In the White House, many of his top advisers, including Vice President Joseph R. Biden Jr. and his first chief of staff, Rahm Emanuel, counseled Mr. Obama against a sweeping health care overhaul. By summer 2009, with the country still stunned by economic crisis and Republicans falsely raising the specter of death panels, some aides practically begged the president to scale back, take interim steps and move on to other issues.
Mr. Obama did not relent...
As the brutal fight continued, the president sacrificed more and more in its name: an overhaul of energy and environmental laws, greater focus on economic issues, some of his own popularity and that of House Democrats, who eventually lost their hard-won majority....
As he awaits the decision, Mr. Obama has no more knowledge of or influence on it than any of the other lawyers handicapping the odds in Washington bars and boardrooms.Yeah, yeah, that is meaningless to me. (And I'm a law professor.) It's not that he unshakably knows the real constitutional law answer because he's a scholar. He's a partisan who's taken a position and he's saying things about the law in the advocate mode. Scathing... no merit whatsoever... That's just banal lawyer talk. It's a difficult question, and it can be answered, with eloquence and internal coherence, either way.
The former law professor turned president is scathing about the argument that the mandate violates the Constitution, saying it has no merit whatsoever.
Have you ever noticed that I — a law professor, not a policy partisan — have never opined on the constitutionality of Obamacare. Glenn Loury pushed me to give an answer on Bloggingheads, and here's how I responded:
The commenters over there are so hostile to to me that one actually wishes that I would "go HIV positive or Full Metal Influenza." Challenged, he offers a longer list of diseases. A more normal person writes: "I can't believe what I'm hearing. Glenn asked Ann whether she thinks the Affordable Health Care Act is constitutional and she basically offers no opinion. She hasn't even blogged on the issue! Isn't she suppose to be a constitutional law professor?" The answer is yes, and that's precisely the point. I study the Court. I don't take the lawyer role and perform the theater of acting like there's a true answer and I know it. The Court will say what the law is. I'm about having a discussion of the topic.
ADDED: If I had to be a judge, I could do it. I can say without bullshitting what judicial nominees always say at the confirmation hearings: I can't tell you what I'd decide until I'm in the real situation of having responsibility for deciding a case. They might be bullshitting, but it's honestly the way I feel. I have too much respect for the process to register a vote for one side or the other in a difficult case. That said, some cases are easy. This one is not.