As of the first Monday of October, the United States Supreme Court is back in session and likely to make what could be a momentous decision on the Patient Protection and Affordable Care Act (ACA). The nation’s highest court will consider President Barack Obama’s landmark healthcare overhaul, which impacts almost everyone in the country. The Obama administration’s request last week that the justices resolve whether or not the healthcare law is constitutional makes it more likely than not that they will deliver their verdict by next June, shortly before the president and his Republican opponent move into the fall general election campaign.
Already, the GOP presidential candidates are taking advantage of virtually every debate and speech to attack Obama’s major domestic accomplishment, which extends health insurance to more than 30 million people who now lack coverage. If, as expected, the justices agree to review the law’s constitutionality, those deliberations would define the court’s coming term. Their decision could rank as the court’s most momentous since the December, 2000, ruling that sent George W. Bush to the White House.
According to the Med Page Today website, “The Obama administration petitioned the Supreme Court to decide on the constitutionality of the ACA, making it very likely that the high court will hear at least one of the cases challenging the landmark healthcare reform law before next year’s presidential election. The U.S. Appeals Court for the 11th Circuit ruled in August that the individual mandate provision of the ACA is unconstitutional. The Justice Department had until November to ask the Supreme Court to hear the case, but filing its petition sets the stage for oral arguments in the spring, and a final decision in June — at the height of Obama’s re-election campaign. The 11th Circuit case was filed by 26 states that object to the ACA on a number of fronts, but opposition to the individual mandate is the main thrust of their argument. The individual mandate, considered the linchpin of the law, requires everyone to have health insurance by 2014. In its petition, lawyers for the Obama administration said the appeals court decision is ‘fundamentally flawed.’”
Supreme Court analysts say it is difficult to predict how the court would rule on the conservative challenge to the health care law. Miguel Estrada argued several cases before the Supreme Court as an official with the Justice Department in the 1990s. “The issues are really hard. Every time you ask the Supreme Court to overturn an act of Congress, it is a very difficult thing for the court to do. And Congress comes to the Supreme Court with a presumption of deference (to Congress) and constitutionality,” said Estrada.
Writing on the Big Think website, Robert de Neufville writes that “The administration’s decision strongly suggests that it will ask the Supreme Court to hear the case, since it doesn’t want the 11th Circuit’s decision to stand. That puts the Supreme Court in the difficult position of having to rule on a politically charged piece of legislation during an election year. Rick Hasen (of the Election Law Blog) that a Supreme Court decision is win-win for Obama: either the court affirms the constitutionality of the law or it seems to overreach by overturning it. By the same token, ruling on the law may be a lose-lose proposition from the perspective of the court. Whatever the court decides it will seem to be taking sides in a political struggle. As Slate’s Dahlia Lithwick says, there may not be five justices who want to want to make the court itself an election-year issue. Lithwick says that “I don’t think Chief Justice John Roberts wants to borrow that kind of partisan trouble again so soon after Citizens United, the campaign-finance case that turned into an Obama talking point. And I am not certain that the short-term gain of striking down some or part of the ACA (embarrassing President Obama even to the point of affecting the election) is the kind of judicial end-game this court really cares about. Certainly there are one or two justices who might see striking down the ACA as a historic blow for freedom. But the long game at the court is measured in decades of slow doctrinal progress — as witnessed in the fight over handguns and the Second Amendment — and not in reviving the stalled federalism revolution just to score a point.”
The editors of Bloomberg Business Week fear the collateral damage that overturning the ACA might cause. They note that “Should the Supreme Court take up healthcare reform this year? So far, only one appeals court has ruled that the ‘individual mandate’ in ObamaCare — the requirement that virtually everybody must buy insurance, with government assistance if needed — overreaches the federal government’s powers under the commerce clause of the Constitution. It’s not a trivial argument. But an affirmative ruling would be a huge departure from our understanding of the commerce clause going back to the New Deal. If the healthcare law’s individual mandate is unconstitutional, so is much of what the government has been doing for 80 years or so, and it will be the duty of the Supreme Court to sort through the ruins of the federal government as we know it and find a few shards to start building again. We can’t help but suspect that the court will choose to avoid this opportunity, by not taking the case, by finding some other grounds for ruling, or by upholding ObamaCare.
“Ever since it passed in 2010, ObamaCare has been attacked as a costly and possibly unconstitutional intrusion of the federal government into people’s lives. Almost the central issue in the campaign for the Republican presidential nomination has been the resemblance between ObamaCare and the state healthcare plan enacted in Massachusetts under then-Governor Mitt Romney. Today, most Democrats feel the less said the better. But if the new law loses in the Supreme Court, the political ramifications may look very different. If the Supreme Court kills healthcare reform, it will stay dead a long time. It took 17 years before anybody felt like scaling that mountain again after Hillary Clinton’s failure two administrations ago.”