Health Reform at the Supreme Court, Day 2: Individual Mandate In Trouble

The quick reading of Tuesday's U.S. Supreme Court hearing on requirements that all Americans have health insurance or face tax penalties finds the conservative-majority Court divided along familiar ideological lines, raising the prospect that the law will not remain intact as passed by Congress.

The hearing began with the government defending the law, with four left-leaning judges receptive to upholding the mandate and the five right-leaning judges notably unswayed if not hostile, according to the reliable blog, ScotusBlog. Reporter (and lawyer) Tom Goldstein posted this summary:

"I left the Court to provide this update. We are halfway through the mandate argument; the SG [Solicitor General] is done. It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate. But there is no fifth vote yet. The conservatives all express skepticism, some significant. They doubt that there is any limiting principle. But we’ll know much more after the other side goes because arguments are often one-sided like this half way through."

A blogger for USAToday, Brad Heath, said that Justice Kennedy, often a swing vote, was particularly unmoved, reporting, “Kennedy said that the law “changes the relationship of the federal government to the individual in a very fundamental way,” and pressed the Obama administration lawyer to explain why the insurance requirement would not leave Congress with nearly limitless power.

In contrast, when the law’s critics came before the Court in the second hour of the hearing, the court’s four left-leaning judges did not appear to push back as hard as the conservative jurists.

Reporting from outside the courthouse, Scotusblog’s Goldstein said,

The most important question was Justice Kennedy’s. After pressing the government with great questions Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn’t overtly embrace that. It will be close. Very close.”

It's anybody’s guess what this may mean for the law. But does underscore a few telling truths about this case. The first is that it will be impossible to separate what the justices will decide from the nation's political climate and the presidential campaign. Protesters outside the court are a microcosm of the political divides across the country--although the Washington Post reported more supporters were present than the law’s opponents, but were less vocal.

At issue before the court are conflicting constitutional viewpoints that divide red and blue states. Opponents say Congress is infringing on their constitutionally protected liberty by forcing them to obtain a commercial product they may not want--health insurance. But defenders say the requirement is needed to bring uninsured people, who get care but drive up costs for everyone else, into the system and to start to control costs. 

Because the law has not yet taken effect, most people's views of it are more based on politics than their experience, a point made by NPR reporter Julie Rovner yesterday who said that less than 10 percent of the country would actually be affected by the mandate--forcing them to buy insurance or face penalties on their federal taxes. Everyone else was already covered through their job or would get coverage through federal subsidies, she said. A Washington Post summary of the law said that figure was 7 million people—or 2 percent of the nation. These estimates underscore that the right-wing criticisms are based on more ideology than personal impact.

On the other hand, liberals are displeased with the law for not offering a public option, a point emphasized by Robert Reich's latest column. Why didn't Obamasimply allow individuals to buy into Medicare, the federal health program for seniors, and leave it at that, Reich asks. The answer, of course, is the insurance industry agreed to go along if it got tens of millions of new paying customers. 

If the justices decide to split the differences between both sides--tossing the mandate but keeping the rest of the law--then the Obama administration may be forced to take another look at exactly what Reich has been suggesting all along.

AlterNet / By Steven Rosenfeld

Posted at March 27, 2012, 6:33am

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