This is more in the spirit of partypooping than of celebration. But on the first anniversary of the Affordable Care Act, one of the law’s most dogged defenders, Rep. Anthony Weiner (D-NY), admitted he thinks the Supreme Court will strike down the individual mandate. It’s not that he thinks the mandate is unconstitutional, but that the court has become so partisan, that its conservative justices will rule against President Obama in a 5-4 decision. He wasn’t glum about it, though — if the mandate goes he said it will pave the way for Congress to pass the public option.
“If lightning strikes, and it turns out that as many of us believe, the Supreme Court turns out to be a third political branch of government and they strike down the mandate — big deal,” Weiner said, expressing a ‘so what?!’ sentiment. “Big deal!”
His take is politically at odds with most elected Democrats, who tend to express confidence that the Court will rule in the Obama administration’s favor. Weiner has been applying consistent public pressure on Supreme Court Justice Clarence Thomas to recuse himself from a future health care reform lawsuit because of money his wife, Ginni Thomas, has been paid by reform foes. That probably won’t happen, though.
“We pretty much see the direction the Supreme Court is going,” he told an audience at the Center for American Progress. “The solution, if the mandate is struck down, is not that the bill falls like the house of cards … the solution is going to be offering something everyone agrees is constitutional and that’s the public option in the exchange.”
After the event, I asked Weiner if his cynicism about the Court made him worry that the justices might take a page out of the Florida handbook and void the entire law. He couldn’t rule it out.
“The Supreme Court unfortunately is a corporate-dominated arm of the Republican Party right now,” Weiner said. “I put nothing past them. But they would have to take a Bush v. Gore like leap to strike down the constitutionality of the whole law. Even the mandate is a pretty thin reed.”
In Florida, U.S. District Court Judge Roger Vinson didn’t declare the entire law unconstitutional — he determined that the individual mandate is unconstitutional and that all of the interacting pieces of the law were non-severable, so had to be swept away.
If the court limits its ruling to the individual mandate itself, a simple fix won’t be easy, politically. Weiner suggested the public option. Other Democrats have suggested more moderate fixes. But Republicans will use an adverse court ruling as leverage, and push to dramatically reshape or undermine the law.
Brian Beutler is TPM's senior congressional reporter. Since 2009, he's led coverage of health care reform, Wall Street reform, taxes, the GOP budget, the government shutdown fight, and the debt limit fight. He can be reached at firstname.lastname@example.org.