The Obama White House, beset by a barrage of liberal criticism over an allegedly inept defense of its signature domestic policy achievement, on Wednesday defended the health care law's constitutionality not on legal grounds but on purely partisan ones.
“The individual-responsibility provision was originally a Republican idea,” said White House deputy press secretary Josh Earnest at the daily briefing, altering the common terminology “individual mandate” to the theoretically more politically palatable “individual responsibility.”
Earnest noted that “conservative Republicans” at the Heritage Foundation originally came up with the concept of the mandate in 1988 and 1990. Conservatives have since said the individual mandate was a response and alternative to a mandate on insurance companies during debate over the approach to universal health care in Bill Clinton’s presidency. In truth, it was conceived as a policy alternative long before Clinton was elected.
Earnest also claimed that Obama's Affordable Care Act drew its policy inspiration from GOP front-runner Mitt Romney’s health care law in Massachusetts. Earnest called Obama’s national health care law a “bipartisan idea” designed to confront “difficult health care challenges.”
That’s a purely political argument to a constitutional question. Earnest offered no defense along the lines of the precedential history of Congress and the commerce clause. It is the reach and scope of commerce-clause authority that is at the heart of the high court’s scrutiny of the health care law.
No one, Earnest insisted, should read anything into the hostile questioning that Solicitor General Donald Verrilli received during the review of the constitutionality of the individual mandate, the subject of a full day of high-court inquiry.
In that vein, it was largely the conservative Supreme Court justices who trained their fire on the beleaguered Verrilli.
Earnest defended Verrilli, whose performance before the Court has been widely panned by liberals who fear his allegedly inexpert advocacy may endanger the law. Others have also come to Verrilli’s defense.
Earnest said Verrilli gave a “very solid performance. That’s just a fact.”
The White House has seen this movie before: a press corps in a lather about what may happen to knock the administration off its preferred course of action. But three days of high-court drama did put President Obama under siege as the underlying constitutional justification of the health care law, long questioned in polling data, is now under intense scrutiny.
That scrutiny may lead to the law’s undoing, and in its first attempt this week to justify the law, the White House chose partisan arguments as a response to constitutional study. Whether it intended to or not, the White House gave voice to critics who contend the law is rooted in outcomes -- expanded access to insurance coverage and a variety of health care benefits -- rather than adhering to traditional definitions of federal power and the commerce clause.
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