The most contentious case to come before the Roberts Supreme Court, the Constitutionality of "Obamacare", has broad implications in several arenas. Besides the political fall out and impact on health care consideratons, another acrimonious narrowly divided opinion will exacerbate the public's perception of the Court as being merely "motivated by politics". A recent CNN poll revealed that over 50% of the public already feel that the decision will be based on the Supreme Court Judges' well known political affiliations rather than the merits of the issues.
SUPREME COURT ERAS AND THE HEALTH CARE PROTECTION AND AFFORDABLE ACT
Supreme Court eras are usually named after their Chief Justices - hence for example we have the Burger Court, the Warren Court, the Rehnquest Court and now the Roberts Court. It is an open secret that Justice Roberts aspires to be a consensus Chief Justice who is anxious to break away from the Rehnquest Court's legacy where 5- 4 opinions were the norm. (The most contentious, being regarded as the most political of them all, Bush versus Gore.)
Roberts has maintained that the court must attend to it's institutional stature with great care. He maintains that if the court is careless with its political capital it will loose it's credibility and legitimacy as an institution. - "The Justices must not only be principled and non partisan they must also appear that way to the nation".
So after 7 years of Robert's leadership, where the norm is still 5-4 decisions on perceived partisan lines, here comes the historic Health Care Act the likes of which Presidents since Truman have tried to enact. (The Clintons were the most recent failure). This act is the center piece of the Obama Presidency. It followed months of campaigning and Congress battles. If declared unconstitutional it would represent a major reversal by the judicial branch of government over the legislative branch. This is not a case, for example, where an individual is claiming that his constitutional rights were violated by a strip search. This is a case that involves a service that costs one sixth of the Gross National Product, (1 in every 6 dollars spent), and affects every American.
Not for 80 years has a Supreme Court invalidated a Congressional Law of this nature, let alone one of this significance. Yet the oral arguments indicate that the majority of Associate Justices may be willing to do so to this 2,700 page law on the basis of only one it's provisions.
Should this case, with it's enormous political ramifications, have yet another 5- 4 result the Robert's era, as he fears, is destined to be labelled "political". Thus it represents Chief Justice Roberts with his biggest challenge, to date, to get a "consensus" judgement.
OBAMA UPS THE ANTE
The likelyhood of the Supreme Court striking the law down has not been lost on the President. He forcefully reminded the Court that this law was Constitutional with ample precedents to back it's legality. It was not an abstract argument, he emphasized, maintaining that it was crucial to over 30 million Americans without Health Care and would effect the whole American population giving them protections they have not had to date. Obama concluded that he was confident that the Supreme Court would not take the unprecedented step of delegitimising this law.
He also attacked conservative commentators who were asking for the law to be repealed:
"I just remind conservative commentators that for years, what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law," the president said.
THE CONSTITUTIONAL LEGAL ISSUES.
The crisp Constitutional point in this case is - has the Federal Government the right to mandate citizens to buy insurance or is this power only granted to the individual States. (This explains why Massachusetts's "Romneycare", which mandates it's citizens to do exactly what "Obamacare" does, has not yet been legally challenged). Those mandated under Obamacare would need to buy insurance as they do not qualify for governmental aid and nor do they have employee insurance.
To the average person this distinction between State and Federal Government is ridiculous and they are not even following the arcane legal arguments. They are just looking at the merits of Obamacare per se which includes endless provisions that inter alia do not allow insurance companies to refuse coverage if you have a preexisting condition and generally seek to provide affordable health care.
The constitutional provision that Congress passed this Act on was based on Article 1 Section 8 of the Constitution. This allows the Federal Government to regulate Commerce which crosses State lines. This includes services and the instruments needed to effect that service and any local activity that may impact on that commerce. There are several Supreme Court precedents from the New Deal era that approximate what is being asked for here.
THE CONSTITUTIONAL ARGUMENTS ON OBAMACARE
Very briefly the central argument of the complainants is that the Obama mandate does not represent a commercial transaction. The latter implies a willing buyer and a willing seller. The Act mandates that those who have not insurance from either their employees or do not qualify for government programs must buy their own. The complainants argue that someone who does not buy insurance is not a willing buyer. Thus the Act is not regulating commerce per se.
Most of the unwilling buyers would be young healthy people who feel they don't need any coverage. Also the complainants argue that medical insurance is generally covered by each state and not across state lines so that the Federal Congress did not have the authority to act.
By extension if this law is upheld the complainants extrapolate that the Federal Government could force people to do anything that the Federal Government wanted. The argument frequently came up that they could force people to eat broccoli!
The counter argument is that everybody needs medical care at one or another time and this can occur at any time. They then will go to an ER and everybody else ends up paying for those uninsured. Last year alone there was $43 billion of "free" care that had to be covered by the government or by increased insurance premiums. Also by your act of not purchasing health care insurance you thus harm others. The behavior of the non compliant will effect all across State lines.
THE ROBERT'S TASK.
From a legal world most legal pundits thought that the Supreme Court wouldn't even hear this case. One went as far as to say he would eat his hat if they did. Similarly from the legal world most believed that the government would have a large majority victory. This perception changed dramatically when the "conservative " judges launched into the lawyer representing the Government's case. They did so in a most disparaging fashion. Now the perception is this is going to be another 5-4 decision most likely in favor for repeal of the Health Care Act.
There are 5 votes that are immovable. These are the 4 "liberal" judges and Clarence Thomas. The latter is a strict constructionist and does not believe for one second that the Constitution is a "living organism". It is what it is for better or worse.
Justice Kennedy, the traditional swing vote, is the Associate Justice most likely to side with maintaining the law. Apparently Judges, Scalia, Alito and Roberts are to a lesser or greater extent said to be for "judicial restraint". The latter phrase includes avoiding to be seen to be too political in their judgements.
The oral argument leads one to believe that Kennedy and Roberts, while leaning to repeal the law, had some flexibility. That would create a 6 -3 result in favor of retention. If commentators are correct then Scalia and Alito can also be persuaded. Additional votes would create a consensus that would begin to help to remove the political label that has been given to the Roberts Court.
REACTION TO THE AGGRESSIVE BEHAVIOR OF THE CONSERVATIVE ASSOCIATE JUDGES
The above argument assumes that Justice Roberts indeed wants to change the perception of the Court. If this is so it will need skills and leadership that he has not shown to date. Besides the future of the Affordable Health and Protection Act the Roberts Court legacy is at a turning point. To use his own words the Court is in danger of loosing it's credibility as already indicated by the polls.
The criticism following the conservative Associate Justices' relentless drilling of the Government's attorney has been vitriolic. A piece by David Dow in the influential "The Daily Beast" called for the impeachment of the judges should they overturn the law. Bradley Joondeph, a former Clerk of Reagan appointed Sandra Day O' Conner, opined in a CNN blog that the Supreme Court is "playing with fire". He wrote that this was no ordinary case and the Judges must maintain the nation's faith that their decisions are grounded in legal principle rather than in partisan politics. Both Dow and Joondepth are legal scholars.
On the other hand there has been a sharp reaction by conservatives to Obama's pointed remarks. Obama's opponents have castigated him for bullying of the independent judiciary. Obama a constitutional legal scholar has maintained that he was giving his considered opinion. (Other Presidents have done so before him).
If anything it is the 5th Federal Circuit Court that have been accused of insulting Obama by demanding a writtern assurance that he accepts that the Federal Courts have the authority to interpret the Constitution.
AT THE END OF THE DAY.
At the end of the day those deprived of health care, or going bancrupt because of costs, for example, will not take the point that they could not get it because that the Law was found to be unconstitutional by 5 votes to 4. The cynics are further maintaining that this is, politically, a "win win" for Obama. If the Court upholds the law he moves on with his major legislation success intact. If they repeal it the Republicans will once again have to defend issues such as not ensuring health care insurance with those with pre existing illnesses, for example, with the argument that the market will sort it all out - a task that it has not achieved for over 80 years.
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