Last week the U.S. Supreme Court heard oral arguments on the Patient Protection and Affordable Care Act of 2009 over an eyebrow raising six-and-a-half hours, spaced over three days. Since this has gone to press, the justices of the high court have already “cast their votes,” are in the process of writing their respective opinions and therefore have decided the fate of “Obamacare,” which conservatives like to bag on and until recently, the administration has embraced.
The court heard arguments on whether the Anti-Injunction Act of 1867 applies. The act specifies that suits dealing with taxes cannot be litigated until a penalty has been issued. If the act does apply, what happened on Tuesday and Wednesday would be seen as practice runs for the next time this law makes it back to the court, in three to five years.
The most polarizing issue was argued was Tuesday. You may have heard the phrase “individual mandate” a lot lately. The afternoon session on Wednesday concerned “severability,” which deals with what would happen to the other provisions of the Affordable Care Act if the individual mandate were found to be un-constitutional. Are they able to be severed from the mandate or is the whole law un-constitutional?
These include popular reforms such as young adults being able to remain on their parents’ insurance policies until age 26, persons not being denied coverage due to a pre-existing condition, and ending gender discrimination in health care rates (women are charged more because they are women, which is considered a pre-existing condition in and of itself).
Personally, I hope that the mandate gets severed and the rest of the law upheld. This will hopefully embolden President Obama to go all the way with a single-payer system (in this case, giving up 10th Amendment rights would be OK in my book). Delivering to the insurance companies the gift of an estimated new 35 million customers is no way to reform our health care system.
Because I am a politics junkie, I listed to every minute of the oral arguments (SCOTUS released them in MP3 format later each day of arguments) and it was fascinating. More veteran court watchers than I observe that the proceedings of the oral phase are not always indications on how the court will decide. Even with that knowledge, one must wonder if Obama wished Justice Elena Kagan was still the solicitor general (the person who argues cases for the administration in front of SCOTUS) rather than her being on the bench. I will not say that Solicitor General Donald Verrilli was incompetent; however, one had to cringe when Justices Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsberg seemed to make the general’s argument better than he was.
It is assumed that those justices will vote to uphold the Affordable Care Act and that Chief Justice John Roberts and Justices Antonin Scalia, Clearance Thomas and Samuel Alito will vote that the law is un-constitutional. It is widely expected that Kennedy will be the “swing vote” on the court, resulting in a 5-4 decision either for or against. It has also been speculated, in the spirit of order, that Chief Justice Roberts would go along with Justice Kennedy resulting in a 6-3 decision in favor of upholding the law. Don’t hold your breath—this country had to deal with a 5-4 Bush v. Gore decision in 2000 and there were no tanks in the streets, but that is a story for another day.
