On March 23 President Barack Obama signed the Patient Protection and Affordable Care Act into law. Now just two years and three days later the first legal challenge to the law, Florida v Department of Health and Human Services made its way to the United States Supreme Court. Florida which represents 26 other states is challenging the individual mandate to purchase health insurance as unconstitutional.
After three days of arguments the ruling will not be revealed until June which is quite a legal cliffhanger as far as the news media is concerned. Opponents of the bill believe the Court will overturn the whole law or such an important part of it that they can repeal the rest, but supporters are confident that the Court will uphold it. The only agreement is between the partisan media who agree that the speculation and conflict over the law is good for ratings. However, none of these people are the most trustworthy prognosticators since they have ulterior motives so what will happen in June is not entirely clear, but defeat would actually be the best thing that could happen for Obama’s reelection.
Legal experts do not know if just the individual mandate will be overturned or the entire law, but they predict that Justice Anthony Kennedy will decide the ruling. Predictably, Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas as the conservative wing of the bench will argue against it while Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Stephen Breyer as the liberals will support it, but Kennedy’s opinion is uncertain. He asked Solicitor General, Donald Verilli Jr. whether the government could “create commerce to regulate it” and later stated it “was a heavy burden of justification.” While Kennedy’s questions are hard to read by legal experts opponents of the health care reform law are ecstatic. Even some supporters are not optimistic, but Kennedy could dash the hopes of conservatives.
Kennedy was nominated by President Ronald Reagan in 1988 for the Supreme Court, but this was Reagan the man not the idealized figure he has become to conservatives. Many justices who join the bench do not really change, but party identification does and someone who was once considered a good Republican or Democrat in their time is not within a decade or two. Former Justice John Paul Stevens was nominated by President Gerald Ford, but in time was so associated with the liberal wing of the court people forgot about that. Kennedy has broken ranks with his conservative colleagues before. Just last year he upheld the decision to uphold the order to reduce California’s prison population.
Getting past the heated political rhetoric the Affordable Care Act is more conservative than President Richard Nixon’s health care plan and Senator Robert Dole’s alternative to Hillary Clinton’s plan in 1993. Moreover, an individual mandate was supported by Republicans not too long ago and has mutated into something toxic in recent years. Politicians change positions over time to win elections and Mitt Romney is proof of that, but justices tend to stay the same and it is possible that Kennedy will uphold the law.
However, the individual mandate or the entire law could be stricken down by a conservative majority. The former is more likely than the latter. Even though the Obama administration contends that the individual mandate part of the law is not severable it could be overturned while the rest stands. Ironically those who are most critical of the judiciary meddling in legal affairs want the Supreme Court to do just that by overturning the entire law. Conservative justices like Roberts are against what he sees as “editorial freedom” and thinks it is the domain of the legislature. If he and a majority of other justices decided to strike down the entire law this would be a most glaring example of Supreme Court hypocrisy. As such striking down the individual mandate would not eliminate the bill, but it would be problematic for Obama and the Democrats to legislate an alternative in the face of so much Republican opposition even if it was not an election year.
The mandate pays for some of the expenses of health care so there are no free rides for those who can afford it. Without it insurance premiums would increase and since that is an undesirable outcome the states might end up imposing their own mandate which will be more difficult to attack since it will be a matter of state governments and not federal which has often been the source of so much outrage directed at the Obama White House. As such the court decision may benefit Obama’s reelection bid.
While polls indicate the Patient Protection and Affordable Health Care Act is unpopular by a majority of Americans that is just the law as a whole. Individual portions are far more popular like requiring health insurers to cover anyone who applies, including those with preexisting conditions, but the individual mandate gets the most opposition even though it is an important part of paying for reform without raising taxes. Libertarians vehemently oppose nearly everything in the law and at one time they were such a fringe group their opinion would not matter, but in an effort to increase their base Republicans have adopted their position. However, there are enough Americans uneasy with requiring everyone to buy insurance and fining them if they do not. Doubtless there are examples of Americans within an income bracket that is too high to qualify for Medicare, but would be economically strangled by having to buy even low price health insurance. That is a problem that must be addressed, but eliminating the entire law would simply create more than solve.
Despite the claims that the individual mandate is crucial to this bill it is likely to survive without it. I cannot imagine the Obama administration crafting a law that could be overturned by the Supreme Court in just two years. Although Obama and the Democrats would be embarrassed by this judicial rebuke they would recover easily enough and the Republicans would lose two of their biggest attacks against the President. Firstly, if the mandate or possibly the whole law was overturned the Republicans could not attack him for helping to create a law that the Court struck down in a matter of years. I am sure that his critics would, but without the animosity generated by the controversial health care law there would be fewer outraged conservatives and these days the Republican base needs them to survive. Moreover, if the entire law was overturned this could potentially make Republicans look unpopular as the provisions of the law that the majority liked are lost too. Secondly, if the Supreme Court overturns just the individual mandate the conservatives cannot claim Obama is a tyrant since it did not stand up to judicial scrutiny. If Obama was a tyrant then how could his law be struck down? Logic has been a stranger to many within the lunatic fringe, but for many who are on the fringe of the fringe the revelation that Obama is just a man who was elected President with powers limited by Congress and the Courts then much of the fervor that has been burning before he even took office will lose much of its reason for existing.
In the end the biggest losers might be those who sought to attack Obama by opposing his vaunted reform law. If the law stands as it is then there is not much recourse except nurturing the futile notion of repeal which would not have the required votes unless Republicans win in a landslide. If the individual mandate is stripped from the bill, but adopted by the states people will still have to pay for their insurance only it will go through state agencies not federal. As such they will lose one of the biggest wedge issues used in the campaign against him. And if the entire law is struck down then the uninsured and those who were protected from unscrupulous insurance companies will suffer and Republicans will be blamed for that not the Democrats. And Obama would be perceived as ineffective, but not despotic. Under other circumstances that would be bad, but if whomever he faces in the election is perceived as cold and indifferent he could win. Regardless Obama’s chances of winning a second term will be increased.