The signatures of President Barack Obama, Vice President Joe Biden, and Speaker of the House Nancy Pelosi on the health insurance reform bill signed in the East Room of the White House, March 23, 2010. Official White House Photo by Chuck Kennedy
Over the last three days, the Supreme Court of the US listened to arguments for and against President Barack Obama’s centerpiece legislation, the sweeping, controversial healthcare act passed in 2010. And now, the waiting game: As liberals and conservatives alike wait with bated breath, the Court will now take until June to decide whether the legislation is constitutional and if not, how much will stand and how much can be struck down (the issue of “severability”, whether part could be severed to save the whole).
The debate in Department of Health and Human Services v. Florida hinges on the question of the “individual mandate”, the legal requirement for nearly all Americans purchase some form of health insurance. Conservatives claim that this is unconstitutional, liberals disagree, and the Supreme Court must decide. There are four Democrat-appointed judges on the Supreme Court bench, alongside five appointed by Republican presidents, but, as some commentators have acknowledged, political leanings don’t always dictate judicial action.
Liberals are nervously biting their nails, while conservatives are feeling the first blush of vindication; meanwhile, others are wondering how the Court’s decision will affect Obama’s re-election chances.
According to The New York Times, the Court spent their last day discussing the legislation focused on what the practical implications of striking down the individual mandate would be.
Justices as legislature? Conservative Justices seem poised to act as “an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee,” worried EJ Dionne, syndicated columnist for The Washington Post, while the court’s liberals – those so-called “judicial activists” – have had to remind their colleagues that “legislative power is supposed to rest in our government’s elected branches.” Obama’s individual mandate was, Dionne claimed, a compromise with conservatives, a way to avoid the government-financed, single-payer system that the right so hates. “The irony is that if the court’s conservatives overthrow the mandate, they will hasten the arrival of a more government-heavy system.”
“The cornerstone of President Barack Obama’s domestic agenda is on life support,” chortled Fox News host Sean Hannity. “In a series of stunning developments today inside the United States Supreme Court, an overreaching executive branch collided with the nine justices of the highest court in the land over ObamaCare. And judging by most accounts, it appears the Supremes could be preparing to pull the plug once and for all on the law’s individual mandate.”
Verrilli failed. Solicitor General Donald Verrilli, Jr. was the man tapped to face the Justices and lead the defense of the law, a “heavy burden” to prove, as one Justice reminded him. “Mr Verrilli didn’t really even manage a little light lifting,” declared Mark Mandell, North America editor for the BBC, much to the disappointment of a number of left-leaning, mandate-supporting bloggers. The Economist’s Democracy in America blog agreed that Verrilli “underperformed”, fumbling his opener and acting “strangely nervous”. By contrast, Paul Clement, the opposition lawyer, was the “picture of agility”.
Now what? Now that Verrilli has apparently failed, many expect the Supreme Court to “rip the heart out” of the legislation; they might not – Justices are a notoriously unpredictable lot. But if they do, BBC’s Mandell noted, “it would have huge political ramifications”, both in the actual change to law and in the “political symbolism”. Obama and the Democrats invested huge amounts of political capital in this legislation and, said Mandell, “To see it ruled illegal would be devastating. A humiliation. A defeat. It would enrage Democrats.” What happens with the rage will impact the outcome of the 2012 election: On the bright side, it could energise the party and “give Obama something to fight for”; and a precipitous rise in health care costs would be blamed on the Republicans; it may even pave the way for the government-run model so despised by libertarians and conservatives. Mandell is not convinced: “In a campaign it is of little use claiming the moral high ground, only to admit your plans have been shredded and there is nothing you can do about it…. What an adverse ruling would prove to voters is the limits of presidential power in America, and reinforce a view that Washington is better at stopping things happening, than coming up with solutions.”
Other big legislation to come into question? The states are challenging the law’s expansion of Medicaid, the US’s insurance programme for low-income and in-need persons, The Economist noted. “If the court throws out the Medicaid expansion, states will be emboldened to challenge other big programmes. The mandate has so far received most of the attention. I wonder, come June, whether a decision on Medicaid will be almost as important.”
The New Yorker compiled a list of the ten most important quotes from the proceedings, taken from a transcript released by the Court. From Justice Ruth Bader Ginsberg: “There are so many things in this Act that are unquestionably okay.”
What the conservatives think the Court should do. A handful of National Review Online writers weighed in on the Court’s debate on Thursday, after the final day of proceedings, offering their opinions on how America’s highest court should act. Jonathan Adler, professor of law at Case Western Reserve University, after noting that the Justices should be wary of “upholding an assertion of government power that most Americans find repugnant”, suggested “that the Court’s credibility is at risk when it fails to constrain unconstitutional assertions of government power.” Robert Alt of the Heritage Foundation, quipped, “If the question is what I hope to see from the Supreme Court, the answer is that 1) the mandate is declared unconstitutional and 2) the Court strikes down the whole law because the mandate isn’t severable. And, like a former president, I still believe in a place called Hope.” Luckily, he added, his hopes seem to be in line with the Court’s trajectory.
