Yesterday lawyers for and against Obama’s landmark healthcare reform began three days of arguments before the Supreme Court. What is truly remarkable though is that the arguments the lawyers are proffering in Court are essentially the same as those politicians proffered in Congress when the healthcare bill was being debated two years ago.
I have written many commentaries on this topic. Therefore, I shall suffice to mark this occasion by merely reprising the one I wrote last November 23 when the Court announced the sessions now underway on the constitutionality of “Obamacare.” It’s anybody’s guess how it will decide, but you’d be hard-pressed to read a more informed commentary than what follows. Which is important given that an increasing majority of Americans believe this healthcare reform law is unconstitutional based on little more than hysterical ignorance:
Supreme Court to Rule on Landmark Healthcare Reform
To listen to his critics, you’d think President Barack Obama signing into law the Patient Accountability and Affordable Care Act (healthcare reform) in March 2010, which made healthcare affordable for over 40 million uninsured Americans, constituted an even greater blight in the blighted annals of American history than President Andrew Jackson signing into law the Indian Removal Act in May 1830, which sanctioned the removal of native Indians from their tribal homeland to make way for white “pioneers.”
Indeed, nothing evokes a Pentecostal-like response at Republican rallies quite like when one of Obama’s wannabe successors declares – with the conviction of a born-again Tartuffe – that his/her “first act as president will be to repeal Obamacare.” Mind you, their declaration is invariably animated by the hope that the Supreme Court will rule the healthcare reform law unconstitutional long before they are faced with the manifestly impossible task of honoring their promise to repeal it.
Which brings me to the Court’s announcement a week ago Monday that it will hear consolidated challenges to this law next spring and rule on its constitutionality before the end of June.
The challenge in the case, brought by 26 states out of Florida, is based on the constitutionality of the individual mandate … which requires that all Americans purchase health insurance.
The nine-member court will also look at severability, meaning if the mandate falls, could the rest of the law survive since it is primarily built on the revenues collected by forcing people to buy health care.
(FOX News, November 14, 2011)
But this is one of those occasions where the adage “be careful what you wish for” seems apt. Because I believe Obama’s critics are in for a rude awakening.
First and foremost, though, it should be understood that 99 percent of the opposition to healthcare reform has nothing to do with the law, but everything to do with partisan politics. Specifically, it simply galls the Tea Partiers who have hijacked the Republican Party that Obama would have any success as president, let alone success on this seminal issue. After all, presidents (Democrat and Republican alike) as far back as Theodore Roosevelt in 1912 attempted healthcare reform but failed.
Clearly the prospect of healthcare reform should have been cause for (belated) national celebration in this richest country on earth, which prides itself on its charity towards others as well as adherence to other Christian values. But nothing could have been further from the truth. For the debate leading up to last night’s historic vote was characterized by the kind of political rhetoric (complete with racial and homophobic epithets) one might expect of a banana republic on the brink of civil war.
Remarkably, the Republicans are still vowing to ‘kill the bill,’ claiming, among other things, that it is a socialist manifesto that will usher in the death of American liberty. Even worse, the Christians who comprise their party’s base seem oblivious to the inconsistency between their fanatical opposition to healthcare reform and their attempts to imbue every facet of American life with their ‘Christian’ values.
(Obama delivers healthcare reform – from Obamacare to Obama cares, The iPINIONS Journal, March 23, 2010)
In any event, where the Supreme Court had just cause to rule Jackson’s Indian removal unconstitutional, it has no cause to rule Obama’s healthcare reform law so. Never mind that partisan politics have so infected even the hallowed chambers of the Court (see Bush v. Gore 2000) that Republicans can be forgiven for thinking that it will declare the law unconstitutional – with the five justices who were appointed by Republican presidents ruling to overturn it and the four appointed by Democratic presidents ruling to uphold it.
All the same, I am convinced that the Court’s own precedents granting Congress virtually plenary powers to regulate interstate commerce will compel even right-wing Justice Antonin Scalia, appointed by Republican president Ronald Reagan, to rule that Congress had the power to enact this healthcare reform bill and that Obama had the right to sign it into law.
The most instructive precedent is the Court’s decision in Wickard v. Filburn (1942). Because there the Court ruled that a law that effectively regulated what a farmer could do with the wheat he grew on his own farm for his own use was in fact constitutional. It follows therefore that if Congress can regulate this personal activity, it can regulate activities involved in the healthcare stream of commerce. The regulation here of course is the necessary and proper mandate which holds that, since every American is bound to use/need healthcare at some point, everyone should be required to buy basic insurance (i.e., instead of relying on emergency-room care, which only forces the insured to pay higher premiums).
Beyond honoring precedents, though, I suspect all justices will be keen to regain the institutional integrity and goodwill the Court lost after Bush v. Gore. Because that case required (conservative justices) to disregard long-established precedents to arrive at what was clearly more of a political decision in favor of Bush than a legal one based on the merits of the case. Indeed, the judicial activism that made a mockery of their conservative jurisprudential philosophy in Bush v. Gore was shameful enough. I doubt all five conservative justices will risk compounding that mockery by overturning Obamacare.
And this obtains no matter how tempted the five Republican appointees might be to do so as payback for the indignant way Obama disrobed them during his 2010 State of the Union Address. Perhaps you recall how Obama chastised them for ruling — in a 5-4 split decision in Citizens United v. Federal Election Commission (2010) — that no limits can be placed on the amount of money corporations and interest groups can use to fund political campaigns.
Accordingly, I predict the Court will rule 6-3 to uphold the constitutionality of what is bound to go down in history as the most important achievement of any U.S. president since the Civil Rights bill President Lyndon Johnson signed into law in 1964. Obama could then weave this victory into his campaign stump speech as yet another promise made, promise kept. His re-election team would also be emboldened to promote the historic benefits this law provides more aggressively. Because you’d be surprised at the number of Republican nincompoops who have been chanting “Obamacare is socialism,” but who have no idea what the law provides or, more importantly, that many of them stand to benefit from its provisions.
(In a similar vein, I can think of nothing more irresponsible than news reporters citing public opinion on the constitutionality of this law. Not least because I’d bet my life savings that half of those polled have never even read the Constitution: talk about promoting mass ignorance.)
Of course, if the Court rules that the law (or just its mandating feature) is unconstitutional, Obama could then weave this defeat into his campaign stump speech as yet another way rabid, right-wing ideology is poisoning politics in America today. His re-election team could also begin running ads showing how a right-leaning Supreme Court is an even greater danger to civil liberties in America than religious nuts (like Republican candidate Rick Santorum) who want to abolish not just all abortions but all contraceptives as well. In other words, vote Obama and he will appoint more impartial, fair-minded justices.
So – instead of this case portending doom for Obama’s presidency – no matter how the Court rules, Obama will be able to frame the outcome to his political advantage.
Stay tuned….
NOTE: That those complaining about the government forcing people to buy insurance are invariably Republicans who already have insurance is an indication of how politically driven they are just to deny Obama the historic achievement this healthcare reform law represents. After all, these are the same people who preach personal responsibility as an article of their conservative faith, but who are now encouraging poor people to rely on others for their healthcare: a clear case of Obama derangement syndrome manifesting as cardinal political hypocrisy.
Not to mention (and it cannot be mentioned enough) what mockery their pharisaic opposition to the provision of healthcare to over 40 million fellow Americans makes of the Christian values they proselytize so zealously.
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Obama delivers healthcare reform…