I think it’s time for a little prognostication on a couple of issues. As John McGlaughlin would say…
Issue 1: GOP Veepstakes
It’s looking increasingly likely that Mitt Romney is going to win the GOP’s financial war of attrition and move on to be their sacrifice nominee to lose to run against Obama in the general election. (I’m sure there’s a Hunger Games reference just waiting to come out, but I haven’t read the books or seen the movie, so I’m going to hold off.) That means it’s time to start jockeying to be his running mate.
Of course, the party has a little bit of a problem.
On the one hand, Romney leaves the GOP’s conservative base a bit cold, and those concerns are not going to be allayed by the now infamous “Etch-a-Sketch” comment. Naturally, the way to solidify the conservative base is to select a running mate with solid conservative credentials. Rick Santorum comes to mind. Marco Rubio does as well, especially with the GOP logic that a Latino on the ticket will draw Latino voters from Obama, even though he’s opposed to allowing undocumented immigrants who arrived as children a path to citizenship. In other words, the thinking is that Latinos will vote for a Latino even if that candidate does not deviate from the party on the issues that drive Latinos away from the GOP.
This is, in effect the same logic that brought Sarah Palin to national prominence. (Thanks for that, by the way, Senator McCain. Really.)
This, of course brings us to the next problem the GOP faces. They need to find a way to win among independent and moderate women. Without belaboring the issue, it’s safe to say that the recent attacks on contraception, women’s health, and even opposition to the extension of the Violence Against Women Act is not going to endear this demographic to the GOP. Well, Romney needs a running mate who can shake that Etch-a-Sketch (It’s just too easy, isn’t it?) and make people forget that he was running as hard right as Gingrich and Santorum in the primaries, vowing to get rid of Planned Parenthood and certainly not standing up to Rush for his misogynistic comments.
Again, using the Palin logic, that a woman on the ticket will draw women to the candidate, I’m predicting that Romney will choose a female running mate. Of course, to satisfy the base, she has to be as conservative as a Gingrich or Santorum.
So who do you go with? Palin again? Doubtful. Bachmann? She has all the credentials. The question is whether the sane Republicans are willing to put all their chips on “crazy” for another spin. Sadly, I’m not sure that the sane Republicans have enough power to stop such a maneuver if it were tried. Someone else? Possibly. I’m not sure I’m familiar enough with the GOP roster of right-wing women to make a further prediction, but I’m anticipating that we’ll become more familiar with that roster in the coming months.
Issue 2: The Healthcare Conundrum
As we all know, the Supreme Court heard three days of arguments this week on the constitutionality of Obamacare. The first day’s questioning was a technical question on whether the court could even consider the case yet. I’ll get back to that in a minute. The second day was the main event, the question of whether the individual mandate to buy health insurance on the private market is constitutional. The third day was on the severability of the Affordable Care Act, the question of whether the other provisions could survive if the individual mandate were to be overturned.
Now the predictions have been all over the place, particularly after the seemingly aggressive questioning on the second day. It’s important to understand that oral arguments are a small part of a case like this, and are not a critical indicator of the outcome.
For the record, I think the individual mandate is perfectly constitutional. The mandate simply says that failure to buy insurance results in a tax to account for the fact that failure to buy insurance raises the cost of healthcare for the entire market (unlike the failure to eat broccoli). The government is constitutionally enabled to impose taxes, therefore it’s constitutional.
That being said, we can’t deny that we’re dealing with a court that has displayed a remarkable activist streak. Scalia, Thomas and Kennedy were responsible for the theft of the 2000 election in Bush v. Gore. Roberts and Alito joined their ranks and helped overturn over a hundred years of statutory and case-law with Citizens United. This court is perfectly capable of making a ruling that has no basis in law, only in their political ideology.
However, these justices also know how unpopular Citizens United is. They know they are viewed as activists, and they could actually be mindful of their legacy. They also know that there’s an election going on, and that the law before them is a critical issue.
Again, what to do?
Well, here’s an artful compromise. Remember that first day, when they were debating whether they could even rule on the case? What’s behind that is what’s called the injunction rule. That rule says that a the court doesn’t rule on a tax until that tax has actually been paid. That won’t happen until 2014 (I think, but in any case, after the election).
So here’s what they can do: leave it up to the voters. How does a court leave it up to the voters? It’s pretty simple, actually. Invoke the injunction rule. Now that does telegraph that the court views the individual mandate as a tax, and would indicate that they will uphold the law when it ultimately comes before them. So how it is that leaving it to the voters?
Well, it allows the election to take place. With the Obamacare as the centerpiece of the GOP attack, the outcome would be a valid indicator of public opinion. If Obama wins, he’s vindicated. He goes on to a second term, and when Obamacare comes back to the court they rule that it’s a tax therefore constitutional.
But what if Obama loses? They’ve telegraphed that it’s a tax, so how can they find it unconstitutional? They won’t have to. If Romney wins, he won’t be alone. In that scenario, the GOP would control both the House and the Senate as well, and they’d repeal Obamacare, thus rendering the case before the court moot.
Is that what they will do? I have no idea, but if it does, or if Romney picks a conservative woman for the ticket, just remember where you read it first.