Wednesday, November 9, 2011

The Health Care Tipping Point & Political Calculus

Today was a momentus day for health care reform because one of the nation's foremost conservative judges, Larry Silberman, wrote an opinion upholding the Affordable Care Act.  Judge Silberman is the second prominent conservative judge to uphold the health care law, as Judge Sutton from the 6th Circuit also wrote an opinion upholding the health care law.  This may yet to be a turning point at which it becomes safe for more conservative and moderate judges, like Anthony Kennedy, to side with precedent and uphold the health care law.

Now, here is the political aspect.  You may recall that some time ago Obama decided to request the Supreme Court to review the health care law sooner rather than later, setting up a possible election year showdown in the Supreme Court.  Many interpreted this through a legal lens, assuming that it was done because Obama thought he would win if he went for it now or didn't want to delay implementation.  Perhaps, but I see it differently.

Obama made a very short-sighted decision when he ordered the Justice Department not to defend the "Defense of Marriage Act"  because it opened the door for future Presidents to follow this precedent and refuse to defend laws they do not agree with.  Should Obama lose, President Romney or Cain(!!!) would now be able to use Obama's example as an excuse to refuse to defend the law.  Obama had to go for it now because there was no guarantee the next President would actually defend the law!  That makes this recent decision all the more important, because it may give health care reform much needed momentum to win now before the next President has a chance to sabotage it.

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