"Shock and awe" best describes the reaction of legislators and commentators upon hearing the Supreme Court's closing day of arguments on the constitutionality of Obama's health care legislation. Democrats as well as the beltway media had assumed the bill was safe, thinking that the legislation fit firmly under the Congressional power of the Interstate Commerce Clause and that justices would be wary of repercussions of single-handedly dismantling the most expansive social legislation since the creation of Medicare.
How wrong they were. From the same justices that brought you Citizens United v. Federal Election Commission (the decision that ruled that corporations, like individuals, are protected by the first amendment, which resulted in the unleashing of a wave of super PACS in this year's elections) and Bush v. Gore, now comes the very real possibility of the end of health care reform.
The line of questioning from conservative justices, as well as swing-vote Justice Anthony Kennedy, indicates a majority of justices already think the mandate (which requires all citizens to buy health insurance) is unconstitutional. With this a foregone conclusion, they've moved on to ask the question: If the mandate is ruled unconstitutional, doesn't that mean that the whole law is invalidated? Justice Kennedy said that if they strike the mandate, "by reason of the court, we would have a new regime that Congress did not provide for, did not consider." He went on to say that anything short of striking down the whole bill might be a "more extreme exercise of judicial power." He was echoed by conservative Justice Antonin Scalia, who said it is "totally unrealistic to comb through a 2,700-page law... My approach would be if you take the heart out of the statute, the statute is gone."
Reporters, commentators and Democratic legislators were stunned by the Court's turn. CNN's Jeffrey Toobin called today "a train wreck for the Obama administration." Toobin said, "this morning was unbelievable. It was like a given that they're throwing out the mandate. Anthony Kennedy was like, 'Well, when we throw out the mandate...' -- Do you know what a huge deal that is?" Although shaken, Senate Majority Leader Harry Reid warned that we couldn't draw any conclusions yet, saying that justices ask lots of questions in many different directions, but that doesn't mean they've made up their minds.
The logistical problem is that if the Court strikes down the mandate, the rest of the law may unravel for financial reasons. Obama's new citizen protections, such a requirement that insurance companies cover people with pre-existing conditions, a ban on charging more for those with complicated health problems and the removal of insurance payout caps on medical services, are all supported by the insurance premiums of new people entering the market through the mandate.
Chief Justice Roberts' echoes this argument when he said that Congress was trying to accomplish two objectives, noting the bill's full title: The Patient Protection and Affordable Care Act. "Congress had a balanced intent. You can't look at another provision and say this promotes patient protection without asking if it's affordable." The law's opponents, including 26 states and the National Federation of Independent Businesses, go further saying that without the mandate, the whole law unravels. Paul Clement, a lawyer for the opposition, said that striking the mandate would leave "a hollowed-out shell" not worth saving.
Liberal justices, tried to guide the conversation back to the reality of what it would mean to dismantle the health care law entirely. Justice Ruth Bader Ginsburg argued that the most legally conservative position is to uphold the law even if the mandate were struck down, leaving it to Congress as to the next course of action: She urged her peers not to deliver "a wrecking operation" to the country. Justice Sotomayor continued, "Why shouldn't we let Congress decide what to do? What's wrong with leaving it in the hands of people... who should be making this decision, not us?"
Despite liberal arguments, the reality of this court is that it almost always divides on partisan lines. Conservatives outnumbered by liberals five to four. The tragedy is that the singular achievement of the Obama administration is about to be gutted. The legislation that cost a hugely popular president nearly all his political capital, the battle that cost the Democrats the House in 2010 and used up all the oxygen while America was in the deepest economic crisis since the Great Depression, the law that was the premier social achievement since President Lyndon Johnson signed Medicare into law in 1965, is about to be dismantled with the strike of the court's gavel.
Of course, it is not merely political history at stake. It's real lives. Gone could be the hope that insurance companies treat all of us the same. Gone could be the promise of health care for tens of millions of uninsured Americans. Unchecked and unregulated, our health care costs will continue to soar. The real tragedy is that, given the enormous political capital required for change, no one will touch health care reform for a generation to come and the problems of the past will become our crisis tomorrow. And once again, Americans will be reminded that our government is in a permanent stalemate and cannot even solve our country's most basic problems.
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