Will Obamacare survive?

April 12, 2012 | 11 a.m.

Healthcare reform may not pass Supreme Court scrutiny.

Views | Jessica Benham

Will Obamacare survive?

Protestors showed their dislike for health care's wide-reaching arm. | MCT

When President Obama expressed support for healthcare reform early in his term of office, he dismissed challenges to its legality and constitutionality as frivolous and unwarranted. Now, with numerous legal challenges to the bill, such threats appear more serious.

The Supreme Court set aside an unprecedented three days for oral arguments to review the Affordable Care Act, an overhaul of the nation’s healthcare system that is the hallmark of President Obama’s term in office. The final decision will likely be announced in late June, with justices now closeted for confidential discussions. As justices and clerks of the Supreme Court are sworn to secrecy until opinions have been officially revealed, inferences drawn from justices’ questions provide the only clues to the court’s final decision.

Due to the partisan division of the court, it will be a close decision, with the conservative majority expressing strong concerns over issues of federalism and the individual coverage mandate. The questions asked by the conservative justices provide special insight into the fate of the bill, making it likely that the bill will be decided on partisan lines, with at least the individual coverage mandate struck from the law.

The four liberal justices appeared, based on the oral arguments, to be comfortable with upholding the law. Conservative Justices Alito and Scalia, on the other hand, expressed skepticism about the bill’s constitutionality; Justice Thomas’ past voting record demonstrates a preference for limiting expansion of federal powers under the Commerce Clause, indicating his opposition to the bill. Since Justice Thomas asked no questions, which is his common practice, his past voting record is the most reliable indicator of his opinion.

It was originally thought that conservative Justices Roberts and Kennedy could be swayed to side with the liberal minority to uphold the bill. However, the questions posed by these two justices during the oral arguments appear to indicate otherwise. Justice Kennedy, especially, was concerned about the constitutional justification under the Commerce Clause, for the bill focuses on issues related to the expansion of Medicaid. Justice Roberts expressed concerns about the individual coverage mandate, noting that it would require some citizens to participate in a market for which they have potentially no need.

Vice President Biden claimed that the Supreme Court will not overturn the healthcare bill, because to do so would give in to judicial activism. Traditionally, the role of the Supreme Court has been to interpret the Constitution, but controversial decisions have led to assertions that the justices have attempted to legislate from the bench, exceeding their constitutional mandate. Such decisions have included Brown v. Board of Education, Roe v. Wade and Bush v. Gore, in which the ideological split of the decisions caused controversy over their legitimacy.

However, while claims of judicial activism might prevent the court from overturning the entire bill, such accusations will not stop the court from eliminating the requirement for individual coverage. The majority of the judges appear to have strong concerns about the legitimacy of this portion of the bill and the court, in a 5-4 decision, will likely strike the individual coverage mandate from the Affordable Care Act.


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