THE US Supreme Court will today hear two hours of deliberations on the constitutionality of the “individual mandate” at the heart of the Patient Protection and Affordable Care Act, President Barack Obama’s most important domestic achievement.
The words “individual mandate” appear nowhere in the 2,409 page Bill, but the requirement that most Americans obtain health insurance by 2014 has been singled out by Republicans as unconstitutional “coercion” of citizens to purchase insurance against their will.
Today’s two-hour session is the most important of six hours of hearings over three days, ending tomorrow. The court will hand down its decision by June 29th.
It has been 45 years since the Supreme Court devoted so much time to a single law.
The US spends $2.6 trillion a year on health care – nearly 18 per cent of its economy and twice as much per person as any other industrialised nation.
Yet, close to 50 million Americans remain uninsured.
Mr Obama’s reform would impose new requirements on employers, create competitive marketplaces where the uninsured could purchase coverage, subsidise those who are unable to afford it, expand Medicaid for the poor and prevent insurance companies from disqualifying applicants with pre-existing conditions or dropping those who fall ill.
The case pits 26 Republican-led states and the National Federation of Independent Businesses, who want to see the Bill struck down, against the Obama administration. Thirteen Democratic-controlled states and territories have sided with the president. Rarely has the partisan divide been so stark.
The health care law will be a major issue in the general election campaign in the autumn.
Mr Obama is expected to benefit if the court upholds the law, while the Republican nominee stands to gain if it is struck down.
Hundreds of supporters and opponents of the Bill demonstrated on the opening day of deliberations yesterday.
On the steps of the Supreme Court, Rick Santorum, the religious conservative presidential hopeful, said the Republican front runner Mitt Romney was unfit
to be nominee because he signed a similar law as governor of Massachusetts. “If you really want Obamacare repealed, there’s only one person who can make that happen,” Mr Santorum said. “Obviously, I don’t believe that Obamacare is constitutional.”
The health care law has put Mr Romney, who now opposes it, in flagrant contradiction with himself. In 2009, Mr Romney argued for the individual mandate on the grounds that it “encourages ‘free riders’ to take responsibilities for themselves rather than pass their medical costs on to others”. The Democrats were “shellacked”, in Mr Obama’s words, in the 2010 midterm elections largely because of healthcare reform. Republicans spread disinformation about the Bill, saying, for example, it created “death panels” that would “pull the plug on granny”.
Negative advertisements have outnumbered positive ads three to one, according to Kantar Media.
Two-thirds of respondents in a Washington Post-ABC News poll wanted the court to nullify the law or at least the individual mandate.
“Obamacare” is used as an insult by Republicans, but Democrats have recently begun to wield it as a badge of honour. Mr Romney is believed to have coined the term in 2007, when he said: “The path of Europe is not the way to go. Socialised medicine... Obamacare.” Democrats long shrank from confrontation over the unpopular Bill. Then last year, Representative John Conyers said he uses the word Obamacare proudly because “it’s going to go down in history as a major accomplishment of the president”.
The Obama campaign has now begun appropriating the term as its own.
Solicitor general Donald Verrilli jnr is defending the government in the Supreme Court. In his brief, Mr Verrilli argued that medical care for uninsured people cost $116 billion in 2008. That amount was passed on to healthcare providers, who passed it on to ordinary citizens.
In his brief, Paul Clement, who represents the 26 states opposing the law, said it “rests on a claim of federal powers that is both unprecedented and unbounded”.
Despite the law’s unpopularity and the 5 to 4 conservative tilt of the Supreme Court, experts believe it will probably uphold the law. The court has for decades interpreted broadly the power of Congress to regulate interstate commerce – the legal underpinning of Obamacare.
Four liberal justices are believed to support the law from the outset. Justice Anthony Kennedy is deemed a swing vote, and at least two conservative justices have concurred in
past decisions recognising congressional powers. The case has been compared to the 1937 challenge to the constitutionality of the Social Security Act, when justices appointed by conservative presidents ruled that Congress, not the courts, must decide such questions.
Three federal appeals courts already upheld the Bill, two of them under conservative judges. One appeals court struck down the individual mandate, but upheld the rest of the law.
Public interest in the deliberations is so keen people began queuing on Friday morning in the hope of obtaining one of 60 free seats for yesterday’s opening session. The first person in line sold his seat for $600.
Yesterday’s debate focused on the obscure 1867 Anti-Injunction Act, which says a tax cannot be challenged until it is levied.
A federal appeals court in Richmond, Virginia, ruled that Obamacare could not be reviewed until the first penalties for non-compliance are charged in the 2015 income tax season. The liberal justice Stephen Breyer and the conservative justice Antonin Scalia expressed skepticism about the pertinence of the 1867 Act and the court is believed unlikely to postpone the case.
Tomorrow morning, the court will examine the “severability” of the law; whether the rest of it remains valid if the individual mandate is struck down.
In the afternoon it will hear arguments by the states against the expansion of Medicaid, which would shift some costs from Washington to them from 2017.
