Obama’s critics may prove right that the mandate doesn’t pass constitutional muster — and he might secretly think so, too — but that doesn’t mean he can’t spot a classic bait-and-switch when he sees one. In 2008, he criticized the individual mandate proposed by then-Sen. Hillary Clinton, saying that “If a mandate was the solution, we could try that to solve homelessness by mandating everybody buy a house.” He never called it unconstitutional, but this wasn’t originally his idea, and now he’s stuck defending it.
The mandate was a Republican plan — that they orphaned as soon as Obama endorsed it. So now he’s putting the “Pottery Barn” rule into effect: if the Supreme Court justices break the Affordable Care Act, then as far as the president’s concerned, they’ve bought it.
No matter what Obama does — burying Muammar Qaddafi, resurrecting Chevrolet, cutting payroll taxes or taking Mitt Romney‘s Massachusetts health plan nationwide — he catches flak for it. At this point he probably figures that if he’s going to get hit either way, he might as well come out swinging.
And in terms of playing nice with the other branches of government, Team Obama is signaling that three years in, they’ve caught on to how rough the game is, and that if they have to, that’s how they’ll play it, too. On Tuesday, an indignant Judge Jerry Smith of the 5th U.S. Circuit fired off a demand that Obama explain his comments. On Thursday, Attorney General Eric Holder shot back a response, defending the executive’s right to bark at the judiciary and concluding bluntly that “the president’s remarks were fully consistent” with past precedent.
End of discussion.
By Friday, Professor Tribe had gone from reprimanding Obama to ripping Judge Smith for his “thinly concealed insult to the president.” And though there was a time — before “Where’s the birth certificate?” and “You lie!” — when Obama might have smoothed the whole thing over with a “beer summit,” that time has come and gone. These days, the president isn’t so quick to pull his punches.
He’s going rogue — and folks should probably get used to it.
David Swerdlick is a contributing editor to The Root. Follow him on Twitter.