As President Obama starts to sound a little more like an incumbent who will wage an aggressive campaign for re-election, the future of his principal legislative achievement thus far in his presidency is becoming a legitimate, if not yet fully appreciated, issue.
I am referring, of course, to the 2010 Patient Protection and Affordable Care Act, disparagingly referred to as “Obamacare” by its opponents. The massive legislation, which was well over a year in the making, has since been heralded (or derided, depending on the speaker) as the major reform accomplishment in Obama’s first term. As various parts of the law are being implemented (the full impact of it will not take effect until 2014), the Republican Party is committed to repealing it as soon as possible.
But that task may become unnecessary.
The law presents a legitimate constitutional issue, one that has already received the judgment of six lower courts and that will very likely be accepted for consideration by the U.S. Supreme Court in the next term (which begins this October). If that timetable holds, the Court will issue its decision in June of 2012, just before the political parties’ presidential nominating conventions. And, unless the Court finds a way to duck the big issue the case will present, its decision will resolve the debate on the law’s constitutionality.
And so, courtesy of the nation’s highest Court, “Obamacare” could become an even bigger issue in next year’s presidential campaign than many of us currently realize.
The constitutional issue the new law presents involves what most legal experts agree would be a question never previously resolved by the Court. In a nutshell, here is what it entails and how it arises from the Act.
A critical component of the new law is the mandate that requires all Americans to obtain health care insurance from private industry providers. The mandate is essential because without the revenue generated by the healthy portion of the population (principally the young who currently go without coverage), insurance companies would not be able to justify the added cost of coverage imposed on them by the law.
So, in essence, the mandate removes a choice that many Americans currently make – risking substantial medical bills by being uninsured – so that those currently deemed uninsurable (e.g., those with pre-existing conditions) can be covered.
The removal of that option/choice is what presents the constitutional issue. The provision is justified by its proponents as an exercise of the Commerce Clause authority allowed to Congress in the Constitution. Opponents argue that the Commerce Clause authority doesn’t allow Congress to compel economic activity, only to restrict or regulate it.
The Commerce Clause of the Constitution received little attention for the first 150 or so years of the country’s existence. During those years, the Clause was presumed to represent the ability of Congress to regulate the trading of goods across state lines, commerce between other nations and the individual states, and little more.
The Clause is one of the many “enumerated powers” given to Congress in Article I (Section 8, Clause 3, to be specific). The document also specifically states that any and all powers not so enumerated are not permitted to be exercised by Congress.
With the expansion of government programs and regulation that the New Deal fostered (to combat the Great Depression in the 1930s), the Supreme Court adjusted its interpretation of the clause (in conjunction with the overarching “Necessary and Proper Clause” that covers all the enumerated powers in Article 8). The adjustment rendered constitutional all laws that dealt with any activity that might have an effect on (or result from) interstate commerce.
That interpretation was affirmed in litigation over the 1964 Civil Rights Act, which prohibited discrimination in privately-owned businesses that had previously been free to deny service to minorities (principally African-Americans and others of color). Thus, the clause had become a vehicle for social change, instead of a means to overcome the incompetence of the original Articles of Incorporation, which had almost sunk the new republic before it had even set sail.
And so things have remained until the passage of this new effort to change the way America deals with health care for its citizens. The issue regarding the Act’s constitutionality goes beyond the Court’s prior interpretation of the Commerce Clause because, instead of denying, restricting or regulating private activity, the Act compels such activity. And that difference is either insignificant or a deal breaker.
It is insignificant if the emphasis on the interpretation of the clause is on whether the activity has an effect on interstate commerce. If that interpretation is adopted by the Court, the Act’s requirement that all Americans purchase health insurance would be constitutional, because those purchases would definitely have an effect on interstate commerce (assuming health care itself is regarded as interstate commerce, as it almost surely would be).
But if the emphasis on the interpretation of the clause is instead on activity that has an effect on interstate commerce, then the Act could easily be found to be unconstitutional. Under that interpretation, the lack of activity (i.e., not choosing to purchase health care insurance) would not be covered by the Commerce Clause and the mandate in the Act would fail constitutional muster.
Six courts have already passed judgment on this issue. Four are federal District Courts, which are the trial courts in the federal system, and two are Circuit Courts of Appeal, which are the first level of appeal for review of District Court rulings. Of the ten judges to consider the issue, one appointee of President George W. Bush broke ranks in finding the mandate provision constitutional and one appointee of Bill Clinton found the mandate unconstitutional. The others all followed the positions of their respective parties. (Two District Court decisions found the law unconstitutional; two found it constitutional, and the two Circuit Courts split, one finding it constitutional, one finding it unconstitutional.)
So, what will the nine-member Supreme Court do? The answer probably hinges on Associate Justice Anthony Kennedy (the other eight, four on each side of the issue, being reasonably predictable). And, if past decisions (e.g., Bush v. Gore, which awarded the 2000 presidential election to Mr. Bush, and Citizens United, which declared that corporations are people for purposes of free speech) are a guide, his vote is more likely to fall with the Scalia-Thomas-Roberts-Alito bloc than with the Court’s moderates.
Will the public’s interest thereby be served?
The answer to that question could be the source of a major debate in next year’s presidential campaign.