Saturday, 7 July 2012

Obamacare: Alive or on Life Support?

by Stephen Dunne

Pro-Obamacare protesters outside the Supreme Court
A few months ago I made some predictions after the United States Supreme Court held oral arguments in the case of National Federation of Independent Business v. Sebelius. It is time to review such claims in the light of the decision issued last week. I concluded that the Patient Protection and Affordable Care Act would not be struck down by the Supreme Court as unconstitutional. I calculated that the four Democrat-nominated (liberal) justices --- Ginsburg, Breyer, Sotomayor and Kagan --- would vote to uphold. I stated that four of the Republican-nominated (conservative) Justices --- Scalia, Alito, Roberts and Thomas --- would vote to strike down. Lastly, I figured that Justice Kennedy would assume his usual role as the swing vote and chose to uphold, but dilute the bill.
Such predictions proved fairly accurate. ‘Obamacare’ survived the courtroom and was upheld in a 5-4 vote on the issue of the ‘individual mandate’. The Court’s opinion stated that, under the Commerce Clause, the mandate was unconstitutional, but ruled that under Congress’ power to levy taxes it was constitutional, and thus permissible. The decision also diluted the bill in part, specifically over Medicare. The Act would have compelled states to agree to the proposed extension to Medicare or face the withdrawal of previous funding; the Court decided that such would overextend the jurisdiction of Congress and instead the extension is optional for the states to enter into.
Anti-Obamacare protesters outside The Supreme Court
However although correct in the outcome, my predictions went sour over the composition of the 5-4 vote. The judgement shocked the political world and left many a pundit’s jaw scraping along the floor in amazement.  Firstly, Justice Anthony Kennedy, (who I stated would not vote to strike down the bill) voted with the dissenting minority to do just that. Even more surprisingly, however, Chief Justice John Roberts voted with the liberal justices to uphold the bill. On the surface, such an eventuality seems incredible. The head of the “most conservative Supreme Court in American history”, who himself holds clearly conservative philosophies, crossed across the widely criticised party lines to uphold perhaps the most vilified piece and controversial piece of legislation since the New Deal era. Furthermore, the conservatives on the Court who often close ranks to form a 5-4 majority on contentious issues, such as in Citizens United v. FEC (2010) or Gonzales v. Carhart (2007), had the opportunity to score a momentous victory, a victory greater even than in 2000 when they were able to install a President in Bush v. Gore. They chose to pass this moment over.
Although seemingly barmy, with hindsight and reflection the Court’s actions appear not only logical, but strategically brilliant.  

Firstly, the conservatives on the Court have always professed to believe in judicial restraint – part of this belief is that the Court should defer to the elected branches of government. Given the arguably clear mandate given to Obama from his presidential victory standing on the policy, to overrule it would seem rather hypocritical. From the eyes of the conservative members of the Court, it is best to wait either four months or four years to see it abolished from within the Capitol. Secondly, the Roberts Court has made itself very unpopular; one critic argues that "the Roberts court has made some embarassinfly bad decisions" over its brief tenure thus far. The backlash as a result of Bush v. Gore has caused the Court years of ill-feeling and the resultant effect of yet another unpopular decision could have finished the court off twelve years on, especially on such a decisive issue. As the seventh President, Andrew Jackson, said of Chief Justice John Marshall, "John Marshall has made his decision. Now let's see him enforce it." Even the landmark decision in Brown v. Board of Education (1954) was ignored by Southern States. The Court could not risk such unpopularity and discmissal by the public. 
Chief Justice John Roberts
Thus, one can observe that the Chief Justice decided to take the bullet to save his Court; he voted in contradiction of his usual beliefs in order to preserve (and reclaim) the institution and the respect it demands (and needs), as well as gain popularity for himself amongst his most ardent critics. And since Roberts is voting to uphold the bill to save himself and his Court, then Kennedy was able to vote against without upsetting this balance. This enables him to flash his conservative credentials at those who scorn his judgements; since his appointment he has made numerous liberal opinions and appeared far less conservative than Reagan would have wanted him to have been when he appointed him. The 5-4 nature also makes the decision appear far closer, far less decisive and thus gives conservatives hope of a future without the possibility of all Americans holding healthcare insurance. So Roberts is forced to concede the victory of a lifetime due to poor decisions along the way, but, in return, gains support amongst his enemies as well as respect for his Court, and Kennedy gains a brief moment of support from conservatives until his next swing decision.
Yet all this is likely to be in vain. Despite all the lengthy litigation that has led to the Court’s recent ruling, the Patient Protection and Affordable Care Act is still not safe. Conservatives across America have merely paused to regroup behind the next strategy to see the healthcare plan scrapped: the election of Mitt Romney. On the day the court issued it opinion, Romney formally announced (once again) that if elected he would repeal and replace the act post haste. In the hours after Romney’s announcement, his campaign gained $3.2m in donations. The fight is not over - its future now hinges upon Obama’s electoral victory this November, and, even should he emerge victorious, the act could well be struck down after the 2016 elections (likely to be won by Republican Marco Rubio).

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