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The Supreme Court and Obamacare

November 19, 2011, 6:36 PM

Obamacare is going to get its day in the Supreme Court. The court granted certiorari in—literally, informed the lower courts that it would hear—three cases challenging the Affordable Care Act on Monday. Its ruling in those cases next summer will help define the Roberts court’s legacy, and could have a major impact on the presidential election.

The Supreme Court was under pressure to hear the challenges. Three circuit courts had already issued conflicting rulings on the law. In September the Obama administration—which would prefer to argue the case itself rather than let the next Republican administration do it—decided to ask the court to rule on the law rather than ask the 11th Circuit Court to reconsider its ruling that it is constitutional to mandate the people by health insurance. And the Supreme Court can't easily turn down a government request to review a lower court decision overturning a piece of a major legislation.

The Supreme Court has set aside five and a half hours over the course of two days in March for oral argument. Five and half hours is an unprecedented amount of time for argument in the modern era—most cases get just one hour. As Lyle Denniston explains, two hours will be devoted to considering the constitutionality of the mandate requiring people to buy health insurance. An hour and a half will be devoted to whether the whole law must be struck down if the mandate is unconstitutional. An hour will be devoted to the constitutionality of the expansion of the Medicaid program for the poor. And finally another hour will be devoted to whether the courts can even consider challenges to the law at this time.

If the Supreme Court rules that all or part of the law is unconstitutional, it would be a sharp rebuke to the president that would come just as the presidential campaign went into full swing. But it would also give Obama a chance to run against a court that he could portray as activist—a case that would be easy to make in light of the court's unpopular decision in Citizens United v. Federal Election Commission to overturn restrictions on corporate political spending. Conversely, of course, if the court ruled in favor of the administration it could energize the president’s political opponents. 

At issue are the limits to Congress’ broad power to regulate interstate commerce. As Sarah Kliff explains, there are a number of things Supreme Court could do short of affirming the constitutionality of the law. If the court finds the mandate to buy health insurance unconstitutional, it could decide to throw out the law entirely. But it could also decide that the mandate to buy insurance is “severable” from the rest of the law and allow the rest of the law to stand. That would probably drastically reduce the law's effectiveness, but would give the law's supporters a chance to salvage it.

As I’ve argued, there’s also a good chance that the court—which is already susceptible to charges of political activism in the wake of the Citizens United decision—may choose to sidestep the main issue by deciding that it can’t rule on the mandate before it goes into effect in 2014. That would allow the court to finally take up the issue at a time when it is likely receive less political scrutiny. That might leave the defense of the law to a Republican administration, but it would also give the law several more years to take effect and demonstrate its effectiveness.

Photo: Pete Souza


The Supreme Court and Obama...

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