Twenty-Twenty Hindsight on the ACA From The New York Times, Before the Supreme Court Rules

-- Posted by Neil H. Buchanan

Sometime this week, the Supreme Court will issue its long-awaited ruling on the constitutionality of the Patient Protection and Affordable Care Act (the ACA). With so much written about the legal challenge to the law, The New York Times has decided to "go meta," publishing articles that combine reporting with strong whiffs of editorial comment. Some of the articles have been interesting and informative (e.g., their explanation of where the broccoli analogy came from). Others have been interesting in a pathological way. In the latter category, yesterday's Sunday edition carried as its top front-page headline: "Supporters Slow to Grasp Health Law’s Legal Risks." The basic premise of the article seems to be (and I do mean "seems to be," because the article hedges so much) that the Obama team put themselves in unnecessary peril by failing to take seriously the idea that the health care law might be found unconstitutional in the Supreme Court.

Of course, in the face of defeat (or, in this case, possible defeat), it is sensible to stop and ask what might have been done differently. If the Court rules against the ACA (in whole or in part), there will be good reason to ask whether a different outcome was even possible. The content of the Times's article, however, struck me as little more than (premature) 20/20 hindsight -- or, for those who prefer sports metaphors, the worst kind of Monday-morning quarterbacking.

Asking about counter-factuals is often helpful, but sometimes it amounts to little more than: "You lost by doing X, so obviously you should have done not-X." (Of course, the article never quite goes there, offering unhelpfully: "Whether a different approach might have changed the outcome remains unclear.") The closest thing to a core argument that one finds in the article is, again, the claim that the Obama people were too slow to understand just how vulnerable they might be to losing in the Court. If only they had taken it seriously, maybe this all would have been unnecessary!

Upon reading the article, my mind went back to the 1988 Presidential election, when the Bush campaign made a huge issue of Dukakis having vetoed a bill in Massachusetts that would have required recitation of the Pledge of Allegiance in schoolrooms. Dukakis, relying on clear Supreme Court precedent, had vetoed the law, but the Bush attack machine was relentless, saying that Dukakis should have signed the law, notwithstanding legal precedent. The attack became part of the whole run of smears that defined that campaign (and that, bizarrely, people who now lionize the elder Bush for his statesmanship conveniently ignore or forget), painting Dukakis as un-American.

After the election, people said that Dukakis blew it by not responding more forcefully to the attacks. My thought at the time, however, was that he had handled it very well. Indeed, if someone had said, ex ante: "They're going to attack you for vetoing a law that is clearly unconstitutional, trying to paint you as someone who hates America," I would think that Dukakis and his team would have been right to think that their opponents' obvious desperation was a good sign. Similarly, those who criticized John Kerry in 2004 for not having responded better to the Swift Boat attacks struck me as engaging in blatant 20/20 hindsight. For both Dukakis and Kerry, the problem was that they simply could not foresee just how possible it had become to turn the truth upside down.

Of course, this could be a reason to criticize the Obama team all the more. (And, as regular readers of this blog know, I am hardly one to hold off on criticizing Obama and his political advisers.) Maybe it was a surprise for Dukakis that Bush's people could get traction with an absurd smear. Perhaps it was even surprising to the Kerry camp, sixteen years later, that the second Bush's team was able to turn a war hero into a traitor. Obama, however, cannot hide behind the defense that "they couldn't do that," can he?

The problem is that this was not an election. This is a Supreme Court case. Yes, there were important public relations aspects to such an important law, and its defense. Certainly, I have been as surprised as anyone at the poor-to-nonexistent defense of the ACA that Obama and the Democrats have offered in the past several years. That, however, is not pertinent to this particular question. The claim (or near-claim), after all, is that the Obama people failed to do something that could have allowed them to avoid losing this case this week, in the United States Supreme Court.

(As a related issue, I must say that I was perplexed by another news article over the weekend, in which the Times claimed that Obama had been deeply committed to the health care law, so much so that he sacrificed everything to get the bill passed. Maybe my memory is faulty, but my recollection is that Obama was unbelievably passive throughout the process, refusing to say what he stood for, or what ultimately was non-negotiable. I suppose it is possible that the article was right, that he was deeply committed to something, but that it just did not matter what that something was. Still, there is a pretty major disconnect between the facts as they appeared at the time and the current revision of those facts.)

What could the Democrats have done differently? Early in the article, former House Speaker Nancy Pelosi is held up as an example of a Democrat who just did not get it, whose hubris possibly doomed the Democrats. How? Pelosi "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?' " It is, however, easy to imagine that this was not cluelessness but simply savvy politics. No matter how much doubt one might harbor about a court challenge, after all, it is often simply good politics to act as if the other side does not have a leg to stand on. "I will not dignify that with an answer" is often a sign of good public relations, not failure to do one's homework.

Finally, I cannot help but note the most annoying argument offered in the article. A conservative law professor claimed that "[t]here’s very little diversity in the legal academy among law professors, [s]o they’re in an echo chamber listening to people who agree with them." This, apparently, is supposed to mean that Obama would not be in this mess if only he would listen to someone other than law professors. Of course, all of my conservative colleagues (and there are many) conceded all along that the challenge to the ACA had no chance at all, unless the Supreme Court simply made up some new doctrine. The Court might do just that, but everyone knew as much all along -- including those of us who supposedly live in an echo chamber. (I made exactly that point when the issue came up in class in Spring 2011.)

We know that Bush v. Gores happen. If we have a failing, it is in not knowing when the core right wing justices are going to indulge their most extreme activist impulses.

The Court might well rule against the ACA this week. If it does, the press and punditocracy will do everything possible to lay blame. The blame, however, will lie not with Obama's non-existent political hubris, or the blindness of liberal law professors. The blame will lie with a failure of the rule of law, in the form of a naked power grab by the Supreme Court.