The Supreme Court and ‘Obamacare’

A bit of a long post but hopefully worth the read. Perseverance will have its reward!

This week will probably see the US Supreme Court ruling on the Patient Protection and Affordable Care Act, better known to pretty much everyone as ‘Obamacare’ or the US Healthcare Bill. The most notable point of this legislation is the arrangements surrounding health insurance, which would become mandatory for every citizen (a few exceptions are allowed). To get you up to speed I’ll quickly outline the build up to the present day.

In all honesty, I could start a long way back in history, but suffice to say a few Presidents have tried and all have failed. Most recently Clinton attempted similar legislation but faced a hostile Congress and it got nowhere.

The issue again flared-up during the Democratic nomination process for the 2008 election, with Obama and his then opponent, Hillary Clinton (remember when they hated each other?!) both proposing similar though slightly different healthcare plans. Obama won the nomination and the later election by promising to bring his healthcare plan into law (it was one of his 3 main election promises, along with closing Guantanamo Bay and bringing in environmental restrictions. It was an over-ambitious manifesto which I think in essence makes it fair to say that Obama lied his way to the Presidency, but that’s for another blog post!).

And so we come to March 2010 and the House of Representatives passing the Bill that was originally proposed to the Senate through some legal processes I won’t bore you with. Every Republican Representative voted against it and they were joined by a few Democrats. Obama signed the Bill into law later on that March and it was almost immediately challenged, finally being declared unconstitutional in a district court in February 2011. A whole load of legal challenges has led to the current US Supreme Court case whose decision we await.

So now I need to outline the workings of the US Supreme Court! The Court is the highest court in the US and is made up of 9 Justices (i.e. judges), each of whom holds their position for life/until retirement. After each case is heard each Justice votes and the Court abides by the verdict of the majority. Justices are appointed by the President, making the appointment process inherently political (West Wing fans will remember in Season 1 a Justice having deliberately put off retirement until a Democrat was in the White House to ensure he is replaced by a fellow liberal). It almost goes without saying that Republican President’s have appointed conservative Justices, whilst Democrat-appointed Justices are liberals. However, just to make it really interesting, the current balance is 4 liberals, 4 conservatives and 1 conservative-but-sometimes-liberal Justice called Anthony Kennedy. His vote, along with Chief Justice Roberts’, could prove crucial. I should add that the Court has already met, the proceedings are finished and the decision has already been made. No one outside of the 9 Justices however knows how they have individually voted and what their final verdict is. That ‘decision’, the announcement of the verdict, is what we are all (Obama and Tea Party-ers alike) are waiting for.

And so we come back to the present day and the fate of Obamacare. It really goes without saying that the decision of the Court will have a massive effect. Having been elected on the promise of universal healthcare and having delivered on that promise and defended it to the hilt against Republicans and the Tea Party, if the legislation is now found to be unconstitutional Obama’s campaign for re-election will take a massive hit. Mitt Romney will be able to seize the advantage in campaign ads and Republicans could reap rewards in local elections in November (for example in Maine, whose Republican Senator, Olympia Snow, who helped frame the legislation with Democratic assistance, is standing down due to serious disagreements with the GOP).

Alternatively, if the legislation is left intact then Obama will appear victorious and will be able to champion the laws as a vote winner. That will work with some people but, and this may surprise you, the law consistently polls as being unpopular with Americans, with 55% currently opposed to it. Forcing them to get health insurance is seen as an intrusion on their individual rights and, crucially, it is also unpopular with insurance companies, who may have to pay out without knowing individuals previous health problems. A complete victory might therefore be unfortunate news for the Democrats as it would be unpopular with the electorate.

So we are left with the third option, a decision resting on one or two votes, the option I think is most likely. The Court could split 5-4 or 6-3 in favour or against. A 7-2 decision either way is highly unlikely as it would appear very damning if against Obama (and therefore political) or very clear cut if in favour of Obama (something that would be highly unlikely in a politically-charged case which has made its way to the heart of the US legal system). If I were a betting man I would say it will be a 5-4 decision in favour with either Justice Kennedy or Chief Justice Roberts providing the crucial vote. A 5-4 against is also on the cards, as is a 6-3 decision in favour with both Roberts and Kennedy voting in favour.

The final thing I’d say is that the Court can pass the law but rule individual parts unconstitutional, something I think they are very likely to do if the verdict goes Obama’s way. The most likely parts to go would be the pork-barreling for Nebraska (extra funding inserted into the Bill to get a vote in Congress), the implications for the medical equipment industry entailed in the Act (a rallying cry for the GOP as a backdoor tax on patients) and some minor issues surrounding subsidies. These alterations wouldn’t satisfy anyone but would make any decision in favour of Obamacare more palatable for the Republicans.

So I predict Obamacare will make it through the Supreme Court but not in its current form. It will pass through the fire without a ringing endorsement, but an endorsement nonetheless, and with few branches burnt off. I could be entirely wrong though so we shall see what news we get from the good ol’ US of A in the next few days!

Debate warmly encouraged