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NationofChange / Op-Ed
Published: Thursday 28 June 2012
Why the Supreme Court will uphold the constitutionality of the Affordable Care Act (Obamacare) by a vote of 6 to 3.
Why the Supreme Court Will Uphold the Constitutionality of Obamacare
Predictions are always hazardous when it comes to the economy, the weather, and the Supreme Court. I won’t get near the first two right now, but I’ll hazard a guess on what the Court is likely to decide tomorrow: It will uphold the constitutionality of the Affordable Care Act (Obamacare) by a vote of 6 to 3.
Three reasons for my confidence:
First, Chief Justice John Roberts is — or should be — concerned about the steadily-declining standing of the Court in the public’s mind, along with the growing perception that the justices decide according to partisan politics rather than according to legal principle. The 5-4 decision in Citizen’s United, for example, looked to all the world like a political rather than a legal outcome, with all five Republican appointees finding that restrictions on independent corporate expenditures violate the First Amendment, and all four Democratic appointees finding that such restrictions are reasonably necessary to avoid corruption or the appearance of corruption. Or consider the Court’s notorious decision in Bush v. Gore.
The Supreme Court can’t afford to lose public trust. It has no ability to impose its will on the other two branches of government: As Alexander Hamilton once noted, the Court has neither the purse (it can’t threaten to withhold funding from the other branches) or the sword (it can’t threaten police or military action). It has only the public’s trust in the Court’s own integrity and the logic of its decisions — both of which the public is now doubting, according to polls. As Chief Justice, Roberts has a particular responsibility to regain the public’s trust. Another 5-4 decision overturning a piece of legislation as important as Obamacare would further erode that trust.
It doesn’t matter that a significant portion of the public may not like Obamacare. The issue here is the role and institutional integrity of the Supreme Court, not the popularity of a particular piece of legislation. Indeed, what better way to show the Court’s impartiality than to affirm the constitutionality of legislation that may be unpopular but is within the authority of the other two branches to enact?
Second, Roberts can draw on a decision by a Republican-appointed and highly-respected conservative jurist, Judge Laurence Silberman, who found Obamacare to be constitutional when the issue came to the U.S. Court of Appeals for the D.C. Circuit. The judge’s logic was lucid and impeccable — so much so that Roberts will try to lure Justice Anthony Kennedy with it, to join Roberts and the four liberal justices, so that rather than another 5-4 split (this time on the side of the Democrats), the vote will be 6 to 3.
Third and finally, Roberts (and Kennedy) can find adequate Supreme Court precedent for the view that the Commerce Clause of the Constitution gives Congress and the President the power to regulate health care — given that heath-care coverage (or lack of coverage) in one state so obviously affects other states; that the market for health insurance is already national in many respects; and that other national laws governing insurance (Social Security and Medicare, for example) require virtually everyone to pay (in these cases, through mandatory contributions to the Social Security and Medicare trust funds).
Okay, so I’ve stuck my neck out. We’ll find out tomorrow how far.
This article was originally posted on Robert Reich's blog.
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ABOUT Robert Reich
ROBERT B. REICH, one of the nation’s leading experts on work and the economy, is Chancellor’s Professor of Public Policy at the Goldman School of Public Policy at the University of California at Berkeley. He has served in three national administrations, most recently as secretary of labor under President Bill Clinton. Time Magazine has named him one of the ten most effective cabinet secretaries of the last century. He has written thirteen books, including his latest best-seller, “Aftershock: The Next Economy and America’s Future;” “The Work of Nations,” which has been translated into 22 languages; and his newest, an e-book, “Beyond Outrage.” His syndicated columns, television appearances, and public radio commentaries reach millions of people each week. He is also a founding editor of the American Prospect magazine, and Chairman of the citizen’s group Common Cause. His widely-read blog can be found at www.robertreich.org.
9 comments on "Why the Supreme Court Will Uphold the Constitutionality of Obamacare"
June 29, 2012 8:39pm
Stick to something that you know something about....being a partisan HACK. You don't know squat about anything else. It is funny to hear you call the Supreme Court partisan when you are the most flaming liberal on the planet and would rather die than say something even remotely intelligent (or conservative).
June 30, 2012 3:14am
LOL. I guess you should stick to something you know about! Funny
June 29, 2012 4:51pm
As usual the pundits missed the point. Obama care is a big hand out for insurance companies (40 millions mandated costumers) so behind a superficial veil of regulation there is a big chunk of money for the big insurance corporations. That is the reason Obama caved so quickly on the public option and it is the reason that the court will uphold it. Turning it down risk that the sleeping prograssive may raise and demand universal payer. With Obama care the progressives continued bamboozled by Obama's illusionistic tricks and the big insurance continue making a killing
June 29, 2012 4:49pm
As usual the pundits missed the point. Obama care is a big hand out for insurance companies (40 millions mandated costumers) so behind a superficial veil of regulation there is a big chunk of money for the big insurance corporations. That is the reason Obama caved so quickly on the public option and it is the reason that the court will uphold it. Turning it down risk that the sleeping prograssive may raise and demand universal payer. With Obama care the progressives continued bamboozled by Obama's illusionism and the big insurance continue making a killing
June 28, 2012 5:44pm
Thank you SCOTUS for Obamacare. By the way, the way it is written, Obamacare will benefit big business, namely the h ealth insurance industry. Roberts achieved two things here. First, he assured profits for the industry and second, he may have made it aa little harder to get B.O. a second term.
June 28, 2012 1:29pm
I'm not sure how you can gut a clause as vague as the commerce clause, but basing the ACA on a direct tax like social security makes a lot more sense. CHETDUDE has it nailed.
June 28, 2012 12:57pm
Repubs screamed against Clinton’s Employer Mandate for health and were for Individual Mandate instead. Now, they whimper against Obama’s Individual Mandate. GOP jerks on the issues like a windshield wiper.
June 28, 2012 10:59am
Indeed, predictions are dangerous as this morning's announcement of the 5-4 decision with only Roberts joining the "Centrists" in holding Constitutional most of the ACA showed. But you did a pretty good job, Robert.
However, it was interesting that they relied on "taxing power" instead of the Commerce Clause. I'm somewhat relieved though because if we can be coerced by the government into forever "renting" one defective commercial product like "health insurance" then where is the limit to the corporate garbage we can be forced to purchase?
But, in the Macrocosm, isn't it interesting how much airplay is begin devoted to this blip on the surface of the USAmerican Sick Care dilemma. The ACA will do NOTHING to ameliorate the basic problem with the U.S. version of "health care" since it leaves the major cost increase drivers, the for-profit insurance, drug and hospital corporations in charge of the entire system - the PROFIT MOTIVE reigns supreme in USAmerican Sick Care.
The profit-motive will also leave the current corporate, CENTRALIZED sick care delivery model in place. It's a model that rewards over-treatment (whether appropriate or not) and bean counters and record keeping and complicated, opaque payment "options" that require teams of bookkeepers and gate keepers in place to interpret, apply for reimbursement. And the corporations retain the capability to deny care - just as they can now. In addition, the drug corporations and corporate hospital monopolies are left to raise prices higher and higher.
The rest of the civilized, industrialized nations have rejected the failed for-profit model that USAmerica continues to tinker with in favor of Universal, NON-PROFIT decentralized provision of Health Care (Like an Improved and Enhanced Medicare for All) and have healthier populations as a result. What the hell is wrong with us?
But in the ultimate Macrocosm it is fluff like this issue allows the propaganda machine to ignore the major drivers of global misery and eventual catastrophe.
The first of these is the bloated war(s) machine(s) - "terror", "drugs", "oil" - the major drain on our dwindling resources being the $2 Trillion per year wasted on the bloated U.S. military-police-criminal injustice-prison-industrial complex.
The ultimate driver is that our fossil fuel addiction causing Global Catastrophic Climate Destabilization will mean the end of the Earth as a viable habitat for large air-breathing mammals (such as ourselves). As we "tinker" with sick care financing and gay marriage and "gun rights", we ignore our over-exploitation of the Earth's finite resources and the constant spewing of toxins into our environment - poisoning the environment we depend on for our water and food.
When as a result of institutionalized human greed the Web of Life is destroyed "Obama/Romney Care" and "jobs" will be the least of our worries...
June 28, 2012 11:29am
Wow, Chet, don't sugar-coat it or anything! I agree with you, though; the mandate doesn't go nearly far enough.
But I just read a piece by Tom Scocca in Slate, that argues that Roberts may have approved the individual mandate as a tax in order to gut the Commerce Clause. I'm hoping he's not that machiavellian, but am not holding my breath. http://www.slate.com/articles/news_and_politics/scocca/2012/06/roberts_h...