These days the Supreme Court is nothing if not predictable. After two days of oral arguments on the Affordable Care Act, President Obama's signature legislative accomplishment, there have been few surprises.
On the first day of hearings, the justices considered whether the lawsuits challenging the individual mandate were barred by the Anti-Injunction Act, a longstanding federal law that prohibits anyone from challenging a tax until after the tax has been collected. In the ACA case, the individual mandate is arguably a tax because someone who does not have insurance coverage will pay a tax penalty to the IRS. If the mandate is a tax, the challenges to that part of the law will be thrown out of court. Not until after 2014, when the mandate goes into effect and someone fails to pay it, would a court be able to entertain a challenge to the mandate.
The problem with that approach is that the justices on today's Court have shown little inclination to avoid flexing their muscles on important political issues of the day. There are few stronger trends in the Supreme Court than judicial assertiveness. A Court that could decide a disputed presidential election in Bush v. Gore; unleash Citizens United on our electoral process; and repeatedly wade into presidential war powers can be expected to have no hesitancy deciding the fate of the Affordable Care Act. So when the justices breezily ignored the plain language of the Anti-Injunction Act on Monday, it was predictable. The Court wants to decide all of the major issues in American politics, including this.
On the second day of hearings, the Court looked at the individual mandate, with the four liberal justices defending the law and the five conservatives attacking it. In the run up to this week's hearings, a poll of Court-watchers found that 85% thought the Court would uphold the individual mandate. One can only wonder which Supreme Court these pundits watch. Apparently, many of those polled believed that the votes of Justice Scalia and Chief Justice Roberts were in play. After all, Scalia voted to uphold the applicability of the federal drug laws to homegrown marijuana intended for personal consumption and Roberts's vote would be influenced by his often-noted concern for the institutional legitimacy of the Court.
Scalia's vote in the marijuana case, however, is easily explained. He's a law and order conservative and upholding the federal drug laws was consistent with his well-established pattern of favoring politically conservative outcomes. His aggressive questioning of the government in the health care case showed that he is likely to stick with the conservatives again. The same can be said for Roberts, who for seven years now has been confounding the expectations of those who believed he'd really push for unanimous, narrow rulings that avoided constitutional questions, as he promised in his confirmation hearings. His voting record is strongly conservative and his desire to protect the institutional legitimacy of the Court is remarkable mainly for its lack of manifestation in any case of significance.
As usual with the closely divided Court, the deciding vote belongs to Kennedy. His skepticism towards the government's argument is also not a surprise. He's proven to be the Justice most likely to side with the individual against the government, regardless of the politics. That's why he pleases liberals on gay rights and pleases conservatives on affirmative action. Although the federal government imposes other mandates on individuals -- including mandates to serve on juries, register for the selective service, file tax returns -- opponents of Obama's health care law have been successful in portraying the mandate as a dire threat to individual liberty. Given that framing, Justice Kennedy's apparent hostility to the mandate is hardly shocking.
So if the Court strikes down the individual mandate in a 5-4 decision with Kennedy siding with the conservatives, be angry or be joyous depending on your personal political loyalties. But don't be surprised.
Follow Adam Winkler on Twitter: www.twitter.com/adamwinkler
Wendell Potter: Hope the Supremes Strike Down ObamaCare? Get Ready for PanemCare
Gee, we were all told there was no such thing as "judicial activism" when the Court was creating rights for felons, abolishing prayer in school, overthrowing State laws on abortion (which had a whole lot more claim to stare decisis than bans on corporate electoral spending). It was not a problem then for the Court "to decide all of the major issues in American politics."
Now that the Court is open to reversing some of those decisions, all of a sudden it's "judicial acttivism."
Hillarycare would have been held Constitutional since payment for government provided health care would have been funded through payroll taxes much like Social Security or Medicare. Hillarycare did not attempt to use the Commerce Clause to force anyone to buy a product or face a penalty. The Democrat controlled Congress passed Obamacare by any and all means possible. The Democrats did not allow any input from the Republicans once they had the votes. Nancy Pelosi admitted she did not read the entire legislation and said that Congress would fix any problems should it be necessary. In their rush to pass Obamacare, the Democrat controlled Congress failed to consider any Constitutional issues. Do you really want Congress, comprised of a bunch of politicians, to regulate what products you have to purchase?
You win the prize for the most insensitive post on this thread.
Might that be due to greedy, profiteering drug companies and stubborn Republicans that would rather bomb some other country and fatten up the military/industrial complex??
Just saying..www.mikesfreedomblog.com
After all, it was THEIR plan, put into place in Massachusetts, created by the Heritage Foundation in the 90's. They pushed for it, right up until the Democrats and Obama agreed to it, then SUDDENLY it was the worst thing in the world.
Basically, they don't want the lower classes to have health care, because they want to hold that club over their heads and want the lower classes to lose as much as possible to the wealthy who run the health care system. Can't do that if they have something that works for the lower classes, can they.
The Administration's original proposal at least seemed comprehensible and containable. Compromise, lobbying and bill riders spawned a three-headed monster, mostly favoring the health care lobby at the expense of the individual citizen. It's time to formally dump what's left of "Obamacare" and start over.
Of single-payer health care (medical care funded from a single insurance pool), Forbes Magazine said,"The constitutionality of single payer is basically uncontroversial (Medicare is single payer health care) and the politics of it would look a lot more appealing to moderates than they did before."
Health care costs have hit 20% of US GDP and for this we're getting third-world care. Let the debate for a serious single-payer begin.
Not at all, did you listen to the oral arguments?
The Supreme Court is not hostile to HEALTH CARE. They are hostile to the AFFORDABLE CARE ACT.
Perhaps because there is a lot in it that is not affordable.
But that's a cheap shot. The debate in orla arguments before the Court is not about health care, it's about the Constitutionally permissible powers of Congress.
At least, that's what I heard.
But catchy title, even if it was wrong.
1. How is it "democratic" for one political party to pass legislation without a single vote from the opposing party in direct opposition to 2/3 of the people they claim to represent?
I find it ironic the administration is now fighting to save the exact same type of individual mandate they used to attack Hillary Clinton in the 2008 campaign. I guess, the President was against the mandate until he supported it. Gee, I seem to remember hearing something similar before,,,,
1) Employers started offering coverage as a value-added benefit to acquire better talent which has interestingly now become a lever against the employees.
2) Healthcare costs have risen sharply disproportionately to the improvements in actual healthcare quality (good ol' open unregulated makets for ya').
None of the systemic issues like the need for universal healthcare ever really get fixed by any of the legislation proposed - they are simply band-aids deferring the set of issues until a later date. Some band-aids are better than others but in the end, they are still band-aids. This only gets fixed when we as a species accept one very simple truth. Capitalism - in it's purest form & while once immensely valuable - has lived out it's useful life and the time has come for a better way of managing & propagating resources in the diverse World economy. Our imperfect practice of capitalism will either die off or will kill off most people...