As the rage over Trayvon Martin’s murder reached epic levels throughout the week, political observers and pundits kept watch over the Supreme Court as it convened three days of historic arguments on a challenge of the Affordable Care Act, otherwise known as “Obamacare.” Signed into law in 2010, the Affordable Care Act was offered the first opportunity the Court allowed that much time for debate in 45 years.
As some of you might be aware, the law insures over more 30 million people by expanding Medicaid while also requiring all Americans to buy health insurance by 2014 or face a penalty (or a “tax” according to some). The case, which has been challenged by 26 states, also made a record rise to the Supremes: just two years. It usually takes several years for most cases to reach the highest court in the land.
But, not this one.
On Monday, the Justices heard arguments on procedural issues, namely, whether the case is “ripe” or ready to be heard by the court considering no one yet has had to purchase insurance. Both sides don’t want that technical impediment to stop the Supreme Court from considering whether the mandate is constitutional. It would hinge on whether the penalty is considered a tax or a true penalty.
A law called the Anti-Injunction Act prevents private citizens from suing over a tax before it comes due. If the mandate is determined to be a tax, the Supreme Court would be obligated to throw it out. It would then have to percolate again up through the court system and would not be before the Supreme Court again for another four years.
It may not matter. All sides of the case – the federal government, private citizens and states – are for the mandate being considered a penalty. However, to at least have that argument presented, the Supreme Court appointed what’s called a “friend of the court” to make that position so the court could consider it.
Legal prognosticators are weighing in and trying to read into the questions asked since the first day, mainly by Justices Sonya Sotomayor, Antonin Scalia, Stephen Breyer and Samuel Alito. Most likely, the Justices will not tip their hands on how they will ultimately rule even though they’ve asked critical questions.
Traditionally, Republicans, Libertarians and conservatives are against perceived activist judges using their own biases, political ideologies and external influences to interpret cases in order to create a certain result. They prefer they make decisions based on a strict reading of the Constitution.
However, there is concern that justices will do just that this round. There is a strong sense that his case will be decided along party lines, with more liberal-leaning judges ruling in favor of the law and conservative ones striking it down.
Justices also heard arguments on the severability of the law – whether the rest of the law can survive even if the court strikes down the constitutionality of the individual mandate portion. Opponents of the law say that the individual mandate requirement is too intertwined in the law while supporters – including the Obama Administration – have said the law can still work without it.
However, the mandate makes it more cost feasible for the parts of the law requiring coverage for people with preexisting conditions, for example.
The court heard arguments about the impact of Medicaid being so drastically expanded and what that means for the millions already receiving it.
Justice Anthony Kennedy seemed to be questioning whether a mandate on insurance would usher in a slippery slope and the gate for the government to impose other requirements on private citizens. He hammered Solicitor General Donald Verrilli, Jr. with hypotheticals, suggesting that mandating insurance would open up a Pandora’s box of sort, and enable the government to regulate brocolli, gym membership and other services and products.
“That changes the relationship of the federal government to the individual in a very fundamental way,” Kennedy said.
The outcome of the case could impact the 2 million young people who were able to piggy back on their parents’ plans – 86 million elderly who are benefitting from prescription benefits from the law and millions with preexisting conditions.
It may be a win-win for the Obama Administration. A win would obviously be a win for him. But even with a loss the Democrats may energize their base and may be able to make the argument that other cases soon to go before the court impacting immigration, redistricting and maybe personhood and gay marriage, in the future, would be at risk.
The results could also impact millions of African and Latino Americans who overwhelmingly and disproportionately rely on Medicaid and Medicare for their healthcare. Also, several Congressional races may hinge on the final decision that could be scheduled for late June or early July, just in time for the 2012 elections.
While after day two court watchers were nervous and anticipating that the law may be struck down, it is really hard to predict the ultimate decision based on questions the justices ask. After oral arguments, they have a few months to consider post hearing filings and can use that, case law and other materials to put together a final opinion.
The point is not lost on any justice that the impact of this law will be significant for millions of Americans, so it is very likely the court will be thorough with its deliberation. They also understand that their reputation as the most powerful jurists in the land is at stake. Whatever the court decides, it will be carefully weighed. That is for certain.