Support the Anti-Reform Lawsuit

Seriously. This could be a Trojan Horse in reverse that could get us Single Payer before 2012.

Unfortunately, the consensus on the 12-state legal challenge to health care reform seems to be that it's going nowhere.

So what do these disagreements among experts mean for how the court is likely to rule? In short, how confident can we be that reform will survive the challenge?

Frederick Schauer, a constitutional law scholar at the University of Virginia, expresses what seems to be the most reliable view. He notes to TPMmuckraker that in the Lopez case, and in a subsequent 2000 case involving the Violence Against Women Act, the Supreme Court has held that there are limits on what constitutes commercial activity under the Commerce Clause -- shifting from the "anything goes" approach that had predominated since the New Deal. Despite the subsequent medical marijuana ruling, Schauer says, those cases offer the "slightest glimmer" to opponents of the bill -- but not much more than that. So twenty years ago, said Schauer, there would have been essentially no chance of the court striking down the legislation. Today, he says, "it's a real long-shot," but not completely out of the question.

There's something else worth considering, though. The fears of reform supporters rest in part on the worry that the Supreme Court's five conservative justices will simply ignore the relevant jurisprudence and use their authority to make a nakedly partisan ruling -- as, many argue, they already did not so long ago.

That seems highly unlikely. Striking down health-care reform, despite the clear weight of evidence that it fits well within the scope of the Commerce Clause, would "be more aggressive than Bush v. Gore," says Kermit Roosevelt, a constitutional law professor at the University of Pennsylvania Law School. "They're probably not eager to do that again."

But what if it's a trick? Maybe Obama, Reid and Pelosi have enraged the wingnuts into filing a lawsuit against a conservative, next-to-useless law that DEforms health care more than it reforms it.

Leaping at the chance to destroy the Democrats, the Roberts Court overturns health care reform right about the time most people are discovering its few advantages, causing a huge backlash that not only sweeps single-payer into place but allows Obama to appoint five flaming liberals to the court.

Brilliant.

Except Kevin Drum pours icewater all over that brilliant plan.

Bottom line, then: I'm not sure Democrats need a Plan B. But here's the thing: if the Supreme Court decided to overturn decades of precedent and strike down the mandate even though Kevin Drum says they shouldn't (hard to imagine, I know), the insurance industry will go ballistic. If they're required to cover all comers, even those with expensive pre-existing conditions, then they have to have a mandate in order to get all the healthy people into the insurance pool too. So they would argue very persuasively that unless Congress figures out a fix, they'll drive private insurers out of business in short order. And that, in turn, will almost certainly be enough incentive for both Democrats and Republicans to find a way to enforce a mandate by other means. If necessary, there are ways to rewrite the rules so that people aren't literally required to get insurance, but are incentivized so strongly that nearly everyone will do it. As an example, Congress might pass a law making state Medicaid funding dependent on states passing laws requiring residents to buy insurance. Dependent funding is something Congress does routinely, and states don't have any constitutional issues when it comes to requiring residents to buy insurance. They all do it with auto insurance and Massachusetts does it with health insurance. Or, via Ezra Klein, Congress could do something like this. There are plenty of possibilities.

So I don't think this is a big problem. It's basically a campaign issue for Republicans, who want to demonstrate to their base that they're fighting like hell against healthcare reform. It helps keep the issue alive and it helps keep the tea partiers engaged. It's sort of in the same league as their eternal promises to support a constitutional amendment to ban abortion. It's a crowd pleaser, but there's really no chance of ever pulling it off.

Sigh. A reverse Trojan Horse would be a lot more fun.