Evan Thomas: Enough Justices Think ObamaCare Won't Work To 'Throw It Out'

As NewsBusters reported in January, Newsweek's Editor at Large Evan Thomas believes ObamaCare "is a disaster."

On Friday's "Inside Washington," Thomas went even further with his criticism of this law calling it a "flawed bill" and claiming, "I think enough justices perceive that it’s not going to work, that will incline them to reach this high constitutional principle and throw it out" (video follows with transcript and commentary):

EVAN THOMAS, NEWSWEEK: It’s, it’s a flawed bill. I mean, it does good things. It does help people who were denied insurance, but it has a fundamental flaw in it, which is that it doesn’t deal with the underlying problems of the healthcare system, because they, Congress ducked on the big issue of…

NINA TOTENBERG, NPR: But that’s not the constitutional issue.

GORDON PETERSON, HOST: But the question is, is it unconstitutional in ordering people, demanding that people buy health insurance? Is that unconstitutional?

MARK SHIELDS: I am not a lawyer and I’m not going to play one on television, but it, it’s, it isn’t asking people to buy a Ford automobile or to buy a Sony television, or demanding that they do it. It is saying you buy this, in fact that judge in Florida acknowledged that the bill and the law depends upon the mandate. Without the mandate, that the law does not work.

PETERSON: Right.

SHIELDS: But, what it is saying is you buy this because it’s in the public good. It’s going to prevent early illness, early death. It’s going to prevent widespread illness and suffering, and that’s the purpose of it.

CHARLES KRAUTHAMMER: Yeah, but that doesn’t answer the constitutional issue.

TOTENBERG: No.

KRAUTHAMMER: Of course it’s in the public good, or it wouldn’t have been attempted in the first place. But the Constitution says there are some things in the public good that the Congress cannot do because we have the limited government and powers are restricted. And the question is, is this over the line? The view I have is that the Commerce Clause has been expanded for 80 years, and there's now a sense in the country, interestingly over the last two years I think in part as a push back against Obama and the liberal agenda over the last two years, which says it isn’t only that the law is inefficient or that it’s going to bankrupt us, but there is something wrong about extending the power of the federal government to compel you to enter into a contract with a private entity, i.e. an insurance company, and to argue that if you allow this, then there are no limits whatsoever on what the Congress can actually order an individual to do.

PETERSON: Does that give you a hint to which way they’ll go?

TOTENBERG: No, but, here I’m just, I think this quote sort of summarizes it all. Charles Fried, who was solicitor general during the Reagan administration, said on television, "I sat at counsel table attacking the Violence Against Women Act as a violation of the Constitution, because as odious as it is to slap a woman around, I didn’t think it was, it involved the economy and regulation of the economy. But,” he said, “insurance, regulating insurance does involve the national economy and is exactly the kind of thing that the Commerce Clause contemplated.” That’s what he said anyway.

THOMAS: Here’s the thing…

KRAUTHAMMER: Here’s our one lawyer.

THOMAS: Here’s the thing.

KRAUTHAMMER: You are a lawyer.

THOMAS: Yeah, but here’s what I learned in law school: The Supreme Court follows the election returns. They’ll couch it in high, constitutional principle, but in fact, their judgment will be based on the realities of how the act is working or not working. And as I think enough justices perceive that it’s not going to work, that will incline them to reach this high constitutional principle and throw it out.

CHARLES KRAUTHAMMER: I agree.

PETERSON: What I learned in law school: the Supreme Court follows the election returns, Mark.

SHIELDS: He didn’t have to go to law school. All he needed to do was read Finley Peter Dunne who said that in 1896, and that is the truth. I’d say it really is going to come down to one individual in this country of 310 million, and it’s justice Anthony Kennedy. I think we probably know…

KRAUTHAMMER: He is our Mubarak.

SHIELDS: He is. He’s the one who’s going to decide…

KRAUTHAMMER: He decides, he decides everything.

SHIELDS: Four- four, Tony Kennedy, thank you, Ronald Reagan.

THOMAS: And he does follow the election returns.

For the sake of the future of our nation, let's hope so.

On the other, one has to wonder if people like Thomas had called this a disaster and a flawed bill while Congress was debating it, maybe the public would have had even a more negative view of the law thereby forcing their respective representatives to vote against it.

Novel thought, huh?