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Supreme Court’s health care decision too big to fail

Gary J. Caruso | Thursday, March 29, 2012

Each generation witnesses at least one iconic event that twists our national fate – often for the betterment of society, other times setting back our way of life. Throughout the last 75 years, American history has been dotted with both tragedy and achievement through external or internal forces. We have endured dramatic attacks upon our nation and assassinations of our government leaders. We have persisted through political intrigue and legislative accomplishments while occasionally adjusting to judicial disappointment. The Supreme Court’s consideration this week of the constitutionality of President Obama’s signature landmark legislation, the Affordable Care Act (ACA), will provide another historical twist when we learn in June whether the high court upholds or strikes down portions or all of the law.

On the opening day, the justices clearly signaled why they are supreme – they would not abide by what the layman saw as common sense, namely, a Reconstruction-era law called the Anti-Injunction Act which forbids lawsuits filed “for the purpose of restraining the assessment or collection of any tax” until that tax has been paid. The court was eager to make constitutional history in the politically-charged matter. Their questions focused on how to wiggle around the law’s flat ban on tax-restraining lawsuits and how to avoid concluding that the mandate’s penalty is, in fact, a tax.

By now the justices have probably met to take their preliminary votes in the case. While the Supreme Court usually confines itself to legal precedent and matters of written law, the national need for health care is too big for the court to void the law by another 5-4 squeaker vote. It has been decades since the high court has dedicated so much time over a three-day period to conduct oral arguments for a single case. That schedule signaled the first of many clues about the historical enormity of their decision. Simply said, the ACA offers too much of a unique and complicated health care remedy for Americans. I believe the chief justice knows that he needs to uphold the law by a 6-3 or better vote.

Chief Justice John Roberts began the year shrewdly defending the self-policing way his court enforces its ethical standards. He demonstrated just how sensitive he is of his legacy by overtly worrying about his tenure’s institutional integrity. Thus, his best interest in the ACA case lies in not gutting the 2,700-page law by a one-vote margin reminiscent of the Bush vs. Gore debacle, even though post-Bush vs. Gore appointees to the court are generally seen as rank-and-file partisans.

Roberts must avoid appearing like the third chamber of Congress. In modern times, the high court polled at a favorable 60 to 80 percent with its highest ratings earned in the late 1990s. However, since determining the presidential election in 2000, the court’s rating has fallen steadily, with an even steeper plunge after its 2005 eminent domain ruling. Today, just 46 percent of Americans approve of the court’s performance as the guardians of the U.S. Constitution.

Roberts will make efforts to accommodate Justice Anthony Kennedy so that they can join the other four liberals – Justices Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg and Stephen Breyer. Roberts and Kennedy left clues on how they will vote during each of the three days of hearings, just like the unfolding of a three-act play. While most observers point to the second day’s brutal questioning against the government mandate to require everyone to purchase insurance, both swing justices left the tiniest of hints that they may join the liberals.

For example, on the second day, after saying that the government changed its relationship with citizens, Kennedy raised the possibility that the mandate was a unique effort to force people into commerce to subsidize health insurance and that the insurance market may be unique enough to justify that unusual treatment. On the third day, both Kennedy and Roberts seemed to grasp the magnitude of the nation’s health care problems. Kennedy suggested a health care fix would require a comprehensive solution. Roberts also spoke about uniqueness, citing that almost everyone uses it at some point.

“Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they’re regulating is how you pay for it,” Roberts noted, paraphrasing the government’s argument.

Just as in a Broadway play when the third act ties up loose ends and solves any conflicts, the third day of arguments accentuated just how seriously void the nation would be if the mandate is stricken. Most justices agreed that if the mandate fails, two subsequent aspects of the law must also be voided: the requirement that insurers cover people regardless of existing medical conditions and the requirement that limits how much companies can charge for premiums based on a person’s age or health. The long-range ramifications became clear for all when Justice Antoin Scalia said removing the heart kills the body. At this point, both Roberts and Kennedy know our national interest – upholding health care for 30 million currently uninsured Americans.


Gary Caruso, Notre Dame ’73, serves in the Department of Homeland Security and was a legislative and public affairs director in President Clinton’s administration. His column appears every other Friday. He can be contacted at [email protected]

The views expressed in this column are those of the author and not necessarily those of The Observer.