This article first appeared in the St. Louis Beacon, May 7, 2012 - No matter how expert the lawyer or the health professional or the political analyst, no one knows how the U.S. Supreme Court will rule on the Affordable Care Act or what impact the ruling will have on health care or the presidential race.
When the law passed, almost all constitutional experts said it was clearly constitutional. Certainly, they said, Congress’ power to regulate interstate commerce includes health care, which is one-sixth of the economy.
Even on the eve of the Supreme Court argument in April, legal experts were predicting that the court might vote 8-1 to uphold the law.
But after six hours of oral arguments over three days, no one was predicting that outcome. Judging simply from the questions asked by the justices it appeared possible that the court would vote 5-4 to strike down the law. If that were to happen, all of the Republican-appointed justices would be voting to void the most important piece of social welfare legislation in the past half century, while all of the Democratically appointed justices would be voting to uphold it.
A partisan breakdown is not the kind of result favored in an institution whose members get life tenure to ensure they are above the political fray. In fact, Chief Justice John G. Roberts promised to try to avoid that kind of split when he took over the court.
Partly because the legitimacy of the court is at risk, the chief justice and possibly Justice Anthony M. Kennedy could join with the liberal justices on the court to uphold the law. If that happens, the chief justice would almost certainly assign himself the opinion and write it as narrowly as possible, limiting the decision to the unique facts of the health-care market in which the health-care costs of people who refuse to buy insurance are paid for by those with insurance.
No question that Congress could have passed a single-payer law without violating the Constitution. It also could have passed the individual mandate under its taxing power, had it applied a little truth in legislating and labeled the fine for failing to buy insurance a tax instead of a penalty. It even could have required a person to buy insurance upon arrival in the emergency room. But, as Justice Ruth Bader Ginsburg put it, that’s not how insurance works. A person can’t buy fire insurance after the house is in flames.
If the court does strike down the law, it is unclear how much of the law will have to go. Justice Antonin Scalia thought the best way for the court to avoid substituting its judgment for Congress’ was to strike down the entire law and let Congress figure out what to do. That could create a chaotic situation in a Congress than can’t agree on simple things that used to be easy, like rebuilding highways.
Some health experts think that some provisions could survive a negative Supreme Court decision. One such provision allows young people to stay on their parents’ health policies until 26. In addition, some liberal states, such as New York and California, might go ahead and set up the health exchanges, providing affordable care, experts say.
One wild card is how a decision striking down the law would play out in the presidential race. President Barack Obama’s indelicate, post-argument shot across the court’s bow may mean that the president is ready to make a 5-4 decision into political issue.
Obama wouldn’t be the first president to take on the court. Thomas Jefferson bridled at Chief Justice John Marshall’s decision establishing judicial review. Andrew Jackson was unhappy with the court’s decision upholding the Bank of the United States and Indian removal. Abraham Lincoln ignored the court on habeas corpus. And Franklin Roosevelt tried to pack the court with additional justices who would rule his way.
But any political strategy targeting the court is risky. A recent Pew poll found that 52 percent of Americans approve of the court. That is the lowest rating in 25 years, but it is twice as high as Congress’ approval.
And it is Congress that has a lot at stake in the decision. A decision striking down the law could limit two of Congress’ strongest powers: its power to regulate interstate commerce and to attach strings to federal aid. If those powers are trimmed, the sun may be setting on the era of federal supremacy that has existed for the past 80 years since the New Deal.