Are You Kidding Me?
"I Don't Think That Was Our Job"
Why did the Democrats fail to defend the ACA? Why does a bear...you know.
My friend Simon Lazarus, one of our great legal writers, has a terrific piece up at TNR on the White House's failed messaging on the ACA. If you're on my side of the fence, take yer blood pressure meds before you click through.
Court challenges to the law were predictable, of course, and indeed were marshaled as soon as the bill became law and filed literally the next week. And at that point, Democrats, Lazarus writes, "didn't even try" to defend the ACA on constitutional grounds, or really explain how it works--that is, why the mandate paid for the guaranteed coverage for sick people. Republicans, as it happened, noticed this:
When Republican governors and attorneys general filed their lawsuit challenging the ACA, they knew that there was agreement among both conservative and liberal constitutional experts that their claims had little merit, in light of multiple decades-old precedents. So Republicans and their allies in the legal world organized a campaign to shift the legal—and, critically, the political—consensus. With characteristic acuity, the central legal architect of the Right’s strategy, Randy Barnett, predicted in December 2010 that, “if the Court views the Act as manifestly unpopular, there may well be five Justices who are open to valid objections they might otherwise resist.”
And so Republican editorial and op-ed writers, bloggers, and politicians synchronized their demonization of the ACA mandate, putting their constitutional critique front-and-center in their political attack.
And on the Democratic side? Take it away, Si:
Indeed, the Obama administration and its congressional allies famously declined to prioritize public defense of the ACA. After the law was signed and the opposition lawsuits were filed, the White House ramped up its ACA messaging operation. But even then, the near exclusive focus was to spotlight ACA benefits, with virtually no rap about why the law is constitutional. On March 21, 2012, a week before the Supreme Court argument, AARP’s Jon Rother accused them, on NPR’s All Things Considered, of being “missing in action” on the political messaging front. To this charge the White House’s health reform point-person Nancy-Ann DeParle, an accomplished expert in the details of health legislation and policy, demurred. “I don’t think that was our job,” she said. Meanwhile, progressive advocates spent less than one third as much on ads supporting the law—virtually none of that on its constitutionality—as was spent on ads making the contrary case.
And that was that. As we say down in West Virginia, Bob's Your Uncle. Of course the mandate came to be viewed as unconstitutional by three-quarters of the population. But it did not have to be that way.
Now, if the White House were rebutting this post, they'd say, I think, that their polling showed that they were getting hammered whenever they talked about the ACA. I think that's what DeParle was obliquely not saying. And they had to pivot back to jobs after using so much political capital on the ACA.
All well and good. But it shows an infuriating lack of imagination and nerve. It's your biggest bill. You have no choice but to defend it.
Finally, Lazarus on what Obama should do Thursday:
Specifically, President Obama should respond to a ruling by the Court, win or lose, by explaining forthrightly that the Constitution empowers the federal government to meet urgent national needs—specifically, to correct chronic failures in a national market that causes 62 percent of personal bankruptcies, leaves tens of millions uninsured, and denies affordable health insurance for individuals with diabetes or asthma. Doing so will be essential to defend a favorable decision, or to support effective replacement legislation if the Court voids some or all of the law. More broadly, such an argument—linking an originalist constitutional narrative to the need to solve real-world problems—would announce that Democrats are finally prepared to beat-back constitutional challenges to other progressive measures.
Amen to that. Sometimes I wish I were on the other side. At least they're not afraid of their own shadows.