The President Thought Kennedy Would Vote To Uphold Obamacare in a 5-4 Opinion

November 5th, 2013

From Game Change II:

The White House and Chicago were braced for that eventuality, but Obama was serene. His private prediction was that the law would be upheld, 5– 4, with Justice Anthony Kennedy siding with the Court’s liberal bloc.

Obama was watching CNN in a room just off the Oval when the network errantly reported that the individual mandate had been struck down. Five interminable minutes passed before White House counsel Kathy Ruemmler burst in with a smile and two thumbs up. Obama had been proven both right and wrong: the Court vindicated the mandate as constitutional, but with Kennedy dissenting and Chief Justice John Roberts in the majority— on the argument that the penalty contained in the ACA for failing to obtain insurance was not an illegitimate regulation of commerce but instead a legitimate tax. The Obama administration disagreed with that reasoning, but who cared? All that mattered was the verdict. Speaking in the East Room, Obama was at pains not to gloat. “Whatever the politics,” he said, “today’s decision was a victory for people all over this country whose lives will be more secure because of this law.” But among his people there were tears of joy and cheers of exultation. On Twitter, Gaspard blurted, “It’s constitutional. Bitches.”

After the case was decided, in a Rolling Stone interview, Obama intimated that he wasn’t surprised with Roberts’s vote.

How do you feel about Justice Roberts’ ruling on the Affordable Care Act? Were you surprised?
I wasn’t surprised. I was always confident that the Affordable Care Act, a.k.a. Obamacare, was constitutional. It was interesting to see them, or Justice Roberts in particular, take the approach that this was constitutional under the taxing power. The truth is that if you look at the precedents dating back to the 1930s, this was clearly constitutional under the Commerce Clause. I think Justice Roberts made a decision that allowed him to preserve the law but allowed him to keep in reserve the desire, maybe, to scale back Congress’ power under the Commerce Clause in future cases.

Uh huh.

After a quick skim, nothing else too important about the Supreme Court about the book. Sadly, nothing about the Sotomayor or Kagan nominations.