A rough Supreme Court reception for ‘Obamacare’

What happened

The U.S. Supreme Court’s conservative majority voiced deep skepticism about the constitutionality of President Obama’s health-care-reform law this week, sparking speculation that they will strike down the signature legislation of his presidency. During three days of oral arguments on the Patient Protection and Affordable Care Act, the central issue was the law’s “individual mandate,” requiring all Americans to have health insurance or pay a fine. Obama’s solicitor general argued that Congress has this authority under the Constitution’s Commerce Clause, which gives it broad power to regulate interstate commerce for the public welfare. But court conservatives appeared to agree with the law’s challengers—which include 26 states—that the mandate far exceeds Congress’s constitutional authority and would lead to unlimited federal power. “If the government can do this,” said Justice Antonin Scalia, “what can it not do?”

The court’s four liberal justices expressed support for the legal rationale behind the individual mandate, indicating that the key vote in a 5–4 decision may be cast by Justice Anthony Kennedy, a right-leaning justice who sometimes sides with the liberal bloc. But he, too, appeared unconvinced by the government’s argument. The law, he said, “changes the relationship of the federal government to the individual in a very fundamental way.” A ruling is expected in June.

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What the editorials said

For the sake of “individual liberty,” the Supreme Court must strike down this blatant expansion of government authority, said The Wall Street Journal. Obamacare establishes a precedent of “unlimited government,” giving Congress “plenary police powers” to regulate private behavior for what it deems the public good. As Justice Scalia asked in oral arguments, if this is made law, what is to stop Congress from forcing people to buy broccoli?

That question distorts the key legal issue here, said The New York Times. America’s health-care system is in crisis, partly because 50 million people are uninsured yet show up in emergency rooms and doctors’ offices anyway. Every family medical policy costs about $1,000 more a year because of the price of treating the uninsured. While Americans can choose to not eat broccoli, said Bloomberg.com, “every American, by virtue of his or her existence, is a consumer of health care.” Congress was “well within its authority” to enact a mandate that people have insurance.

What the columnists said

The ideological battle on display this week goes beyond health-care reform, said Jeffrey Toobin in NewYorker.com. In their Citizens United ruling, conservatives led by Chief Justice John Roberts and Scalia took a wrecking ball to campaign-finance reform. If they invalidate health reform, they will be telling Congress it cannot take “bold steps to address national problems,” effectively “impairing the national government for a generation.” Spoken like a true liberal, said Peter Wehner in CommentaryMagazine.com. Obamacare is the most extreme example yet of “the progressive movement,” which seeks government control of every facet of our lives. This law cannot be allowed to stand.

But if the court’s conservatives do kill the law, said Aaron Blake in WashingtonPost.com, it wouldn’t be “exactly a win-win for Republicans.” The GOP would lose “one of its top rallying cries” for the November election—repeal Obamacare. Meanwhile, the Democratic base would “redouble its efforts” to give Obama a second term so as to fill any court vacancies with liberals. Still, having his “chief domestic achievement” struck down would be a real black eye for Obama, said David Horsey in LATimes.com. In the heat of a national election, he’d be seen as the president who “tried to do something unconstitutional.”

The court’s justices pretend they’re “completely above public opinion,” said Dahlia Lithwick in Slate.com, but they’re actually “fanatically worried” about declining public confidence in their branch of government. Roberts and Kennedy, in particular, are keenly aware that the court was seen as nakedly partisan after Bush v. Gore and Citizens United; striking down a Democratic president’s biggest legislative initiative by another 5–4 vote would only further the impression that the court’s majority is on a political crusade. Don’t be surprised if Roberts and/or Kennedy decide to play it safe and uphold this law, preferring to “keep their powder dry” for upcoming rulings on affirmative action, immigration, and gay marriage.