22 February 2020
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Rustin Silverstein
Hamilton Place Strategies
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High Noon at the High Court
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By Rustin Silverstein, rsilverstein@hamiltonps.com

Today, the U.S. Supreme Court begins three days of arguments over the constitutionality of the 2010 health care reform act -- formally known as the Affordable Care Act and referred to by its opponents and, as of this past weekend, the Obama reelection campaign as “Obamacare.” This will represent the high court’s most significant foray into a political debate since Bush v. Gore -- except for this time, the stakes are even higher.

The health care reform decisions could also upend the dynamics of a presidential election. But that’s just the beginning.
 
The Court will determine the fate of a bill intended to extend health care coverage to millions of uninsured Americans and slow the ever-rising costs of health care. It stands as President Obama’s signature legislative accomplishment and the fulfillment of a goal that had eluded every Democratic president since Franklin D. Roosevelt. Repeal of the health care reform bill is also the top priority of the Republican presidential candidate and GOP congressional leaders.
 
And, perhaps most significantly, the Supreme Court’s decision this summer could determine the scope and limits of the federal government’s power for generations to come.

The Supreme Court will release audio recordings of the oral arguments in this case on its website at the end of each day’s proceedings. Below is a brief guide to the issues under debate, the key justices to watch and an analysis of some possible implications of the Court’s rulings.

The Issues: Timing; the Individual Mandate; Severability; and Medicaid Expansion

The Supreme Court will consider four legal questions:

1. Can the Court consider challenges to the law’s penalties before they are imposed?

Current law prohibits legal challenges to a tax until it is due. The penalties at issue in this case would be imposed for an individual’s failure to obtain health insurance and would not go into effect until 2015. If the penalties are deemed a tax, the Court could defer consideration of the issue and hold that any objection to the mandate and its penalty is premature at this time.

2. Is the individual mandate constitutional?

The primary objection to the health care reform act is the requirement that individuals purchase health insurance under the law. Opponents of the mandate have argued that it is an unconstitutional assertion of federal power over individuals. Supporters of the mandate argue that it is consistent with Congress’ constitutional powers to impose taxes and regulate interstate commerce under the Commerce Clause.
 
3. Does the fate of the entire health care reform act rest on the constitutionality of the individual mandate?

Interestingly, both the proponents and opponents of the law argue that the individual mandate is not “severable” from the other provisions of the health care reform act. That is, they believe that a finding that the individual mandate is unconstitutional would render the entire law unconstitutional. Nevertheless, a lower court ruled that the rest of the law is severable from the individual mandate and the Supreme Court has appointed a lawyer to argue that position this week.

4. Can Congress require the states to expand the Medicaid program?

Finally, the Court will hear a challenge brought by 26 states alleging that Congress exceeded its constitutional authority when it required that states expand the eligibility and coverage thresholds for participation in the joint federal-state Medicaid program providing health care to the poor and disabled.
 
The Dynamics on the Court

Although forecasting the outcome of a Supreme Court case is more art than science, we can confidently predict the following:

  • The four justices representing the Court’s more liberal wing are likely to uphold the constitutionality of the health care reform act given their past support for a broad constitutional interpretation of federal authority. 
  • Consistent with his long held views, Justice Clarence Thomas will almost certainly find the health care reform act an unconstitutional assertion of federal power.
  • The fate of the President’s signature domestic achievement, then, rests with the remaining four justices. 

The Deciders

For a sense of how the Court may rule, pay particular attention to the questions posed by these justices during the arguments:

Anthony Kennedy

Justice Kennedy most frequently plays the role of swing vote on the Court. As the likely fifth and deciding vote, Kennedy will have the opportunity to shape the final decision to his liking. Any indication of his position revealed during oral arguments could hint at the final outcome of the case.

John Roberts

Chief Justice Roberts, while a product of the Republican legal establishment, may have an interest in “crossing party lines” in this case. As Chief Justice, he may want to protect “his” court’s reputation from accusations of partisanship by forging a broad coalition with the liberals and one or two other conservatives that upholds the constitutionality of the health care reform act in a narrowly-tailored decision.
 
Antonin Scalia

Perhaps the most unlikely savior for “Obamacare” might be the Court’s most outspoken conservative -- Justice Scalia. While Scalia has joined majorities in the past finding that Congress exceeded its constitutional authority under the commerce clause, he has also, more recently, defended federal prerogatives. In fact, the lawyer arguing in support of the health care act’s constitutionality uses language nearly identical to Scalia’s past writings in his briefs before the court. Furthermore, he extensively cites the lower court decision of former Scalia clerk and well-known conservative jurist Judge Jeffrey Sutton concluding that the health care reform act passes constitutional muster.
 
Samuel Alito

As one of the newest members of the Court, Justice Alito lacks a clear record on these issues. However, it is safe to say that there is no love lost between this justice and the President. Then-Senator Obama opposed Alito’s appointment to the high court and, later, Alito famously mouthed “not true” in response to Obama’s criticism in the 2010 State of the Union address of the Supreme Court’s Citizens United decision on campaign finance reform.
 
The implications:
 
If the law is found to be unconstitutional:

A cloud with a silver lining for Obama

If the Court finds that all or part of the health care reform act violates the constitution, it will represent a stark rejection for the President and a vindication for Republicans.

In the context of the presidential campaign, this rebuke, while embarrassing to the President and damaging to his legacy, might provide him an opportunity to energize his base against an “activist,” right wing Supreme Court seeking to undo the will of the people’s democratically-elected representatives. Indeed, Obama may be heartened by President Franklin Roosevelt’s landslide reelection in 1936 after the Supreme Court declared a number of his New Deal initiatives unconstitutional -- although, the health care reform act is now as popular as the New Deal measures were.

Relief for Romney

A finding that the health care act is unconstitutional would benefit the presumed Republican nominee Mitt Romney. As Republican opponents never tire of noting on the campaign trail, Romney is an uneasy standard-bearer for Republican opposition to “Obamacare” given its similarities to the individual mandate-based health care initiative he signed while Governor of Massachusetts. However, if the Obama health care reform act is declared unconstitutional, Romney will be better able to pivot from awkward denunciations of “Obamacare” to subjects more suited to his background and campaign message such as the economy and the federal budget.

Seeking a new solution to a big problem
 
Beyond the campaign, the demise of Obama’s plan at the Supreme Court will reignite the debate over how to solve the persistent problems of rising health care costs and the growing numbers of uninsured Americans. Republicans, who have pledged to “repeal and replace Obamacare,” will be responsible for more clearly articulating their alternatives. Democrats will likely revive previously rejected proposals such as a “public option” that would offer Americans the chance to purchase government-run health insurance or a single-payer, “Medicare for all” plan. Ironically then, the Court’s decision rejecting what many on the right perceived to be a “government takeover” may open the door for mainstream consideration of a far greater role for the federal government in the provision of health care.

Opening the litigation floodgates

Legally, a finding of congressional overreach by the Court would invite endless rounds of litigation challenges to all but the most explicitly constitutionally-mandated federal actions and could hamstring efforts by future presidents and congresses to accomplish broad national policy objectives.
 
If the law is found to be constitutional:

For the GOP, an energized base led by an uneasy candidate

If the health care reform act is allowed to stand however, it would represent a dispiriting loss for its opponents but could motivate them to support GOP candidates in November as they campaign on congressional repeal as the last hope for stopping “Obamacare.” Romney, as the party’s standard bearer, would be forced to lead this charge and, in the process, risk affirming the view that he is an “Etch A Sketch” candidate, ready to change his positions to suit the political climate.

The Salesman-in-chief gets another chance
 
President Obama and his supporters would obviously be heartened by a victory at the Supreme Court and might seize the opportunity to put to rest the alarmist rhetoric surrounding health care reform and try, once again, to sell their plan to a skeptical public.

If the Court defers a decision:

See you in four years

Of course, the Court could decide to punt and rule that the constitutionality of the health care reform act cannot be decided until the problematic provisions have actually gone into effect. The renewed legal challenges then would start working their way through the courts three years from now and should arrive back at the Supreme Court just in time for -- you guessed it -- the 2016 presidential campaign.

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