(WTF?) Obama’s legal tactics seen as possibly hurting chances to save health-care law

[alp227]

Thanks to DU I've learned to be skeptical of anything that Peter Wallsten writes. Here's his latest piece of shoddy journalism:

Obama, a former constitutional-law instructor, and White House lawyers helped shape a legal strategy essentially portraying health care as a unique marketplace that Congress, under the Constitution’s interstate commerce clause, could regulate by imposing the requirement that consumers buy insurance before receiving treatment or pay a penalty.

Many liberals had criticized Solicitor General Donald B. Verrilli Jr. for a halting performance during the oral arguments on the case in March. But while Verrilli took the lead in shaping the government’s case, the broader strategy being questioned in some circles stemmed from a close partnership between the solicitor general’s office and the White House — with the strategy securing the Obama’s approval.

The critics say the administration failed to fully develop arguments tailored to the court’s conservative members, who often look to the original intentions of the Founding Fathers for guidance. The critics represent a small but influential group of scholars who believe that this “originalist” thinking — typically dismissed by the left as outmoded and dangerous to modern precedents such as the Roe v. Wade abortion ruling — could be used effectively to defend liberal laws. Some say that Obama, who has criticized the originalist view, and lawyers in his administration may have decided for ideological reasons to steer clear of a conservative-seeming argument — a suggestion deemed absurd by administration officials.

To defend the health-care mandate, for instance, the government could have cited past measures such as a 1792 law signed by President George Washington requiring able-bodied men 18 or older to purchase a musket and ammunition. Several scholars, even former president Bill Clinton, have cited the 18th-century law as an example of an individual mandate that happened to be imposed by a president with impeccable originalist bona fides.

...only to write later on:

Administration officials interviewed declined to be named, in order to describe internal thinking. To back up one of their decisions, they pointed to a lower-court opinion written by a conservative judge slapping down the musket mandate as a useful argument.

[bluestateguy]

1. The 1792 Militia Act argument would have been laughed out of court

It had nothing to do with the commerce clause, but rather, the clause of the Constitution that concerns raising armies. Not applicable here.

[alp227]

2. then there was this bill from the John Adams admin requiring sailors to buy health care

I think I learned about that bill thru DU. That "Act for the Relief of Sick and Disabled Seamen" applied to privately employed sailors! Libertarian UCLA law professor Eugene Volokh comments further on whether this law was a mandate or payroll tax.

[GusFring]

3. I'm tired of people pretending this thing is going to be decided by judges

Its decided by politics. It was never a chance of it being fairly judged. Regardless of arguments.