As the Supreme Court begins three days of hearing about the constitutionality of the Patient Protection and Affordable Care Act (ACA), Americans have mixed feelings about President Barack Obama’s signature healthcare overhaul. The individual mandate is extremely unpopular, despite the fact that approximately 80 percent of Americans have healthcare coverage through workplace plans or government insurance such as Medicare and Medicaid. When the insurance obligation kicks in, the majority of Americans won’t need to buy anything new. The bottom line appears to be that Americans object to being told how to spend their money, even if it solves the dilemma of the nation’s more than 50 million uninsured. One critic dismissed the individual mandate by saying “If things were that easy, I could mandate everybody to buy a house and that would solve the problem of homelessness.”
Listen to Republicans describe the law as an attack on personal freedom, and you’d be surprised to learn that the idea originated with them. Its model is the Massachusetts law enacted in 2006 when Mitt Romney was the governor. Former House Speaker Newt Gingrich supported an individual mandate as an alternative to President Bill Clinton’s healthcare proposal, which put the burden on employers. All four GOP candidates have promised to repeal the Affordable Care Act, which they describe as “Obamacare.” Former Senator Rick Santorum (R-PA) terms it “the death knell for freedom.”
President Obama and congressional Democrats passed the mandate in 2010, without Republican support, in an effort to create a fair system that assures that all Americans — whether rich or poor, young or old — get the healthcare they need. One thing that proponents point out is that other economically advanced countries have succeeded at it. Congress determined that when the uninsured visit a clinic or the emergency room, the care they can’t afford costs roughly $75 billion a year. A large percentage of that cost ends up adding $1,000 a year to the average family’s insurance premium.
In legal briefs challenging the law, opponents contend that the “minimum coverage requirement” — known as the individual mandate — would set a precedent that could apply to literally anything. If it’s legal for Americans to be told to buy health insurance, Congress could try to impose “a broccoli mandate, a car-purchase mandate, really any other mandate that you’d want,” said Ilya Somin, a law professor at George Mason University. “There are lots of interest groups that would love to lobby Congress to require people to buy their products.”
The mandate is intended to ensure that new insurance market reforms in the law work as intended. Unless younger, healthier people — who often don’t purchase insurance until they get sick — are covered, the costs of those changes would be exorbitant. In response to opponents’ admonitions that a mandate to buy insurance could lead to other government-required purchases, the Obama administration argued that no such examples exist. “Respondents acknowledge that states do have the power to enact purchase mandates, but they identify no example of any state ever having compelled its citizens to buy cars, agricultural products, gym memberships or any other consumer product,” according to the Obama administration.
Not surprisingly, 73 percent of Americans believe that the Supreme Court will be influenced by politics when it rules on the constitutionality of the ACA. The attitude crosses party lines and is particularly popular with independent voters, of whom 80 percent believe that the court will not base its ruling strictly on its legal merits, according to a Bloomberg National Poll. Seventy-four percent of Republicans and 67 percent of Democrats believe that politics will be a determining factor in the court’s healthcare decision.
“I always worry when the court steps into the political thicket,” said Barbara Perry, a Supreme Court scholar and professor at the University of Virginia in Charlottesville. “It does so at its peril.” The justices themselves say that politics doesn’t impact their decisions. “It is a very serious threat to the independence and integrity of the courts to politicize them,” Chief Justice John Roberts said at his 2005 Senate confirmation hearing. Justice Stephen Breyer told Bloomberg News that politics doesn’t influence the court, even in cases with electoral implications. “It would be bad if it were there,” he said. “And I don’t see it.”
In reviewing the ACA, the Supreme Court is entering territory that it hasn’t approached since the days of Franklin Delano Roosevelt: ruling on a president’s signature legislative victory in the midst of his re-election campaign. Justices are taking more time to listen arguments — six hours over three days — than any other case in the last 44 years. “This is a central challenge to the modern Constitution, which was fashioned during the New Deal and then elaborated further during the civil rights revolution,” said Bruce Ackerman, a professor at Yale Law School in New Haven, Connecticut and author of The Decline and Fall of the American Republic. “This goes to the very foundations of modern American government.”
The closest comparable was 76 years ago, involving Roosevelt’s New Deal, a response to the Great Depression. It wasn’t a single piece of legislation and included the creation of Social Security. The court ruled against parts of the New Deal, while leaving others in place. The principal decision came when the court struck down much of the National Industrial Recovery Act, which allowed industries to create trade associations that set quotas and fixed prices.
Those wishing to tune in and watch the excitement are destined to be disappointed. The Supreme Court will make available same-day audio of the oral arguments. In its announcement, the court said it is making the audio available because of the “extraordinary public interest” in the case.