Will the US Supreme Court Strike Down Obamacare?

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Answered by: Stephen, An Expert in the Current Affairs Category
It was inevitable that the fight over the constitutionality of the Patient Protection and Affordable Care Act of 2010, President Obama's signature legislative achievement, would be decided by the US Supreme Court. What is less clear is the outcome of the case. But if one were to bet on the most likely outcome, it would be that the high court will affirm the controversial law, also known as Obamacare.

This fair certainty is based not on the Court's jurisprudence on state sovereignty (that perennial refuge of many a politician disaffected with the actions of the federal government); nor is it based on some novel interpretation of the Commerce Clause of the US constitution. In fact, it is not based on any legal theory that would eviscerate Obamacare overnight. Rather, it is based on the political dynamics of the healthcare law debate.

As conservatives pray and wait for the Supreme Court to strike down Obamacare, a little history is in order: The individual mandate, the part of the law that most riles conservative opponents, was originally a conservative idea — a strange pedigree which is hard to appreciate given the strong opposition from conservative Republicans. It was first proposed by the Heritage Foundation, a bastion of conservative thinking, before being taken over by Republican luminaries such as Mitt Romney, former governor of Massachusetts, and Newt Gingrich, former speaker of the House of Representatives (both of whom are running for president today). Even Romney put in place a similar law in Massachusetts with nary a protest from conservatives.

But the hullaballoo got louder and turned more vicious as soon as President Obama took it as his main vehicle of solving America’s vexing healthcare problem. In their pivot against the idea that they initially favored, the opponents of Obamacare have made it a political, not a legal, fight. The question of its constitutionality has been drowned out by the nastiness of its politics. And the politics have been blatant: Republicans have been completely against the law. Nearly all the states that have filed petitions against the law have Republican governors or attorneys general. A Republican-led House of Representatives has voted to repeal it. Even in the federal judiciary, the political divide has been visible, though substantially less so than in the political world: Judges appointed by Republican presidents have tended to view the law as unconstitutional, while those appointed by Democratic ones have tended to take the opposite view.

With this political/ideological divide in mind, many commentators appear to believe that the Supreme Court will strike down Obamacare, granting them a great legal victory and dealing Obama a fatal political blow. Here is why this might not be the case.

The Roberts' Court, though never known for moderation, is nonetheless aware that wading into political fights of this magnitude is never good for the Court. The last time the Court entered into a political fray of significant public interest was in Bush v Gore, a 2000 decision that effectively awarded the presidency to George H.W. Bush. The outcome of that case damaged the Court in the eyes of the public, with many commentators accusing the justices of partisan or self-serving interests.

More recently, the Court decided Citizens United v FEC. Although that case was not as well known to the public as Bush v Gore, its consequences on politics and election financing laws have been immediate and far-reaching. And the consequences on the Court too have been negative, with many politicians and legal commentators questioning the motives of the justices, with some assigning political motives to their decision.

Obamacare will be the mother of all legal and political battles. Unfortunately for the justices, the politics of it are now the dominant theme. As soon as the Court announced that it was taking the case, the cable shows were dominated by one question: What will a decision mean for Obama’s re-election chances? Already, a storyline is developing that the five conservative justices of the Court will vote to strike down Obamacare. If that were to happen, there will be no escaping the discussions — and suspicions, even if unfounded — that Republican justices invalidated the law to hurt a Democratic president.

To escape this negative discussion, and to avoid being seen as an extension of the Republican party, the justices will simply affirm the law, and let the political branches sort out their mess in Congress and the White House.

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