Predictions are always hazardous when it comes to the economy, the weather, and the Supreme Court. I won't get near the first two right now, but I'll hazard a guess on what the Court is likely to decide tomorrow: It will uphold the constitutionality of the Affordable Care Act (Obamacare) by a vote of 6 to 3.
Three reasons for my confidence:
First, Chief Justice John Roberts is -- or should be -- concerned about the steadily-declining standing of the Court in the public's mind, along with the growing perception that the justices decide according to partisan politics rather than according to legal principle. The 5-4 decision in Citizens United, for example, looked to all the world like a political rather than a legal outcome, with all five Republican appointees finding that restrictions on independent corporate expenditures violate the First Amendment, and all four Democratic appointees finding that such restrictions are reasonably necessary to avoid corruption or the appearance of corruption. Or consider the Court's notorious decision in Bush v. Gore.
The Supreme Court can't afford to lose public trust. It has no ability to impose its will on the other two branches of government: As Alexander Hamilton once noted, the Court has neither the purse (it can't threaten to withhold funding from the other branches) or the sword (it can't threaten police or military action). It has only the public's trust in the Court's own integrity and the logic of its decisions -- both of which the public is now doubting, according to polls. As Chief Justice, Roberts has a particular responsibility to regain the public's trust. Another 5-4 decision overturning a piece of legislation as important as Obamacare would further erode that trust.
It doesn't matter that a significant portion of the public may not like Obamacare. The issue here is the role and institutional integrity of the Supreme Court, not the popularity of a particular piece of legislation. Indeed, what better way to show the Court's impartiality than to affirm the constitutionality of legislation that may be unpopular but is within the authority of the other two branches to enact?
Second, Roberts can draw on a decision by a Republican-appointed and highly-respected conservative jurist, Laurence H. Silberman, who found Obamacare to be constitutional when the issue came to the U.S. Court of Appeals for the D.C. Circuit. The judge's logic was lucid and impeccable -- so much so that Roberts will try to lure Justice Anthony Kennedy with it, to join Roberts and the four liberal justices, so that rather than another 5-4 split (this time on the side of the Democrats), the vote will be 6 to 3.
Third and finally, Roberts (and Kennedy) can find adequate Supreme Court precedent for the view that the Commerce Clause of the Constitution gives Congress and the President the power to regulate health care -- given that heath-care coverage (or lack of coverage) in one state so obviously affects other states; that the market for health insurance is already national in many respects; and that other national laws governing insurance (Social Security and Medicare, for example) require virtually everyone to pay (in these cases, through mandatory contributions to the Social Security and Medicare trust funds).
Okay, so I've stuck my neck out. We'll find out tomorrow how far.
ROBERT B. REICH, Chancellor's Professor of Public Policy at the University of California at Berkeley, was Secretary of Labor in the Clinton administration. Time Magazine named him one of the ten most effective cabinet secretaries of the last century. He has written thirteen books, including the best sellers "Aftershock" and "The Work of Nations." His latest is an e-book, "Beyond Outrage." He is also a founding editor of the American Prospect magazine and chairman of Common Cause.
Follow Robert Reich on Twitter: www.twitter.com/RBReich
Andy Stern: Will the Supreme Court Eat My Health Care, Too?
How did he figure so much out when no one else had a clue?
He was most surprisingly correct saying that Roberts would figure a way to finesse it,
-- the tax rationale was about as contrived as any decision has ever been.
I don't believe it was for the sake of a good opinion of the court in the public eye,
there wasn't a trace of "impartiality" as you suggested. There were two sides about as partial as they could be.
This isn't over, only the very foolish celebrate. This is about as messy a law as we have ever had, its proponents admitted that it was flawed as created, it remains to be seen if it ever will be financially sound.
Proponents claim that "it's a start" (implying that we can get a congress to improve it) is about as fond and foolish a notion as there is.
And, the tax device simply says that the matter is deferred until 2014 when someone has to pay the penalty/tax and then can petition the court.
Let me guess.... You sound like Part of the GOP Do Nothing crowd.
Not only that, but your fellow GOPeers will continue to try to deny basic Affordable Health Care to their most valuable resource..... Their own People !
Now, who are the fools ?
Well done.
Roberts goes through legalistic contortions trying to redefine the mandate as a tax, despite the fact that the ACA – as it was passed by Congress – did not define the mandate or its penalty as a tax.
By referring to the provision as a tax, he provided an answer to a different question than the one he was asked. Instead, he should struck down the mandate as unconstitutional and invited congress to re-write the provision as a “tax”.
I hope the law helps a few people in the short run, but I don't believe it will stand.
I don't trust what Obama has done -- better regulation or a public option would have been sounder practically and constitutionally. He chose not to promote alternatives. They died because he chose to let them die.This law is already becoming prohibitively costly and is evidently open to many types of legal challenges.
What the hell happened to Anthony Kennedy???
Now maybe the Congress will listen to your thoughts
on the economy.