Finally, after three days of the longest proceedings heard in the U.S. Supreme Court in 46 years, conservative politicians and millions of Americans have demonstrated their fanatic blood thirst to kill “Obamacare.” Now the only question remaining is whether at least five Supreme Court justices will share their venom.
Based on the stiff reactions of the justices during the proceedings, the individual mandate – which places a penalty on people who can afford health insurance but choose not to purchase it – and potentially, the entire Patient Protection and Affordable Care Act, may be in peril when the court makes its ruling in June. Yet it’s important to remember how far we’ve come since the days when people most viewed the act’s constitutionality as a given.
Back in 2010, the commonly held legal view was, as former Solicitor General (under Ronald Reagan) and current Harvard law professor Charles Fried said at the time, “If you don’t like it, repeal it or amend it. But don’t ask the courts to do the job for you, because they won’t.”
Forget the costs or effectiveness of the act – they don’t matter in this case. What matters is the Commerce Clause in the Constitution grants the federal government the right to regulate interstate commerce. Heath-care insurance made up 17.6 percent of U.S. GDP in 2009, making it one of the largest industries in the country. The constitution grants the government the right to regulate a near universally used market. From the day an American enters this world until the day he dies, he almost certainly directly and indirectly participates in the health-care market.
When the 6th U.S. Circuit Court of Appeals upheld the constitutionality of the individual mandate in 2011, Judge Jeffrey Sutton – nominated by former President George W. Bush – wrote that, “The basic policy idea … is to compel individuals with the requisite income to pay now rather than later for health care.” The ruling also noted that providing health-care coverage to the uninsured raised collective premiums by $43 billion in 2008. Unlike forcing everyone to eat broccoli – a popular argument against the individual mandate – we are already paying for the uninsured and the act just aims to manage the money differently.
Asserting that an individual mandate would grant Congress unlimited power plays politically, but it should not hold up from a legal standpoint. Unfortunately, the court seems inclined to support this political rhetoric and Americans have taken notice: A recent Bloomberg poll concluded 75 percent of Americans believed politics would influence the court’s decision and only 17 percent thought the court would rule solely on legal merits. Such pessimism should disturb you.
As many in the press have pointed out, the poll numbers likely result from the realities of this year’s campaign. If the court overturns President Barack Obama’s central initiative, it will fuel the fires of Republican rhetoric, leading Obama’s opponents to cast his presidency as “unconstitutional” and stigmatize the entire Democratic Party – fair or not. Given Obama’s presumed advantage at the moment, the predominantly conservative Supreme Court has a strong incentive to rule against the individual mandate, not to mention that Justice Clarence Thomas’ wife is a lobbyist for the Heritage Foundation, which is vehemently opposed to the act. Conflicts of interests cloud the case.
The court has displayed political motives in the past, but perhaps not since Bush v. Gore has the nation analyzed the politicized nature of deliberations so closely. I hope people will realize the nuanced implications of the court’s ruling in June.
So will the justices rule based on legal merits or politics? No matter where your party allegiances lie, you should hope for the former. Otherwise, we’ll have a Supreme Court distorted to a sad degree.
Nadav Karasov is a sophomore economics major. He can be reached at karasov@umdbk.com.
