WASHINGTON DC – The stakes are high on a number of fronts as the U.S. Supreme Court hears what will be a near record number of hours of oral arguments this Monday, Tuesday, and Wednesday. Before the court are several challenges to the constitutionality of President Obama’s Healthcare Reform Act passed two years ago in a totally partisan Senate vote.
If the Justices follow their recent patterns, a ruling will be handed down in late June. Their decision will not only shape the legacy of President Obama for years to come, but may set a major precedent for how much authority the Constitution gives Congress.
Susan Low Bloch, a constitutional law professor at Georgetown University Law Center in Washington put this week’s arguments in perspective when she said, “The healthcare case is the biggest test of the president and Congress’ power since the New Deal.”
Three Rounds of Arguments
Most of the focus of Republicans and others opposed to the healthcare bill has been on the portion of the Affordable Care Act that would require citizens to pay penalties if they fail to obtain medical insurance. But the Court will actually be considering four major issues over the three days.
Monday’s arguments will focus on a question that could put the whole proceeding on hold until long after the upcoming elections. The Anti-Injunction Act of 1867 dictates that judges cannot rule on challenges to federal taxes until after levies are assessed. If the Court rules that act applies, they will postpone hearings until 2015.
Tuesday will feature consideration of the insurance requirement. What is being challenged is the federal government’s right to mandate Americans to make private purchases. The Obama administration contends Congress can enact the insurance provision under either its authority to impose taxes or constitutional power to regulate interstate commerce.
Wednesday will have Justices consider other parts of the law, most notably issues concerning Medicaid. The court will take up whether the law, by expanding the Medicaid program, unconstitutionally coerces states into spending more on health care for the poor.
Another major consideration will be what happens to the rest of the law if the insurance requirement is overturned. Opponents to Obama’s healthcare plan rightfully believe the entire reform plan falls apart without federally mandated insurance.
Two groups are represented in challenging the law before the Supreme Court: the National Federation of Independent Business and 26 Republican-controlled states. Corporations, hospitals, insurers, and the U.S. Chamber of Commerce have remained neutral until the Court makes its decision on the matters before it this week.
Much can be learned about where Justices potentially stand from their question. By the end of the arguments, justices’ concerns probably will be evident, even if it’s unclear how they will vote.
Four of the nine justices will probably be key on the issue of the insurance requirement. Justices Antonin Scalia and Anthony Kennedy both were in the majority when the court limited Congress’ commerce clause power in decisions in 1995 and 2000. They switched sides to join a 2005 ruling that allowed federal prosecutions of people who use medicinal marijuana that never crosses state lines.
Justices Roberts and Alito have never ruled in a commerce clause case. Roberts did support broad federal power when he joined the majority opinion in a 2010 decision upholding the civil commitment of sexually dangerous people whose federal prison terms have expired.
What is at Stake?
The insurance requirement is the star of these arguments because interpretation of the commerce clause of the Constitution will come into play. That clause says Congress may “regulate commerce with foreign nations and among the several states.” This clause has often been used in landmark cases such as the 1964 Civil Rights Act.
The court previously has extended the reach of the commerce power through the necessary-and-proper clause. That provision says Congress may “make all laws which shall be necessary and proper for carrying into execution” its enumerated powers.
Congress also has power under the Constitution to “lay and collect taxes, duties, imposts and excises.” The Obama administration contends the tax clause offers a second, independent constitutional basis for the law.
The 26 states and the independent business federation cite two Supreme Court rulings they say show the high court will and should step in when Congress goes beyond the powers listed in the Constitution.
The court voted 5-4 in 1995 to strike down a federal law barring possession of guns near school buildings as being beyond Congress’ power under the commerce clause. Similarly, the court in 2000 struck down a provision in U.S. law letting victims of gender-based violence sue in federal court, rejecting government contentions that the measure had a sufficient connection to interstate commerce.
Rulings on the healthcare bill have met a split decision in lower courts. Of the four federal appeals courts to rule, two upheld the law, one declared the mandate unconstitutional and the fourth said the Anti-Injunction Act made a court review premature.
The last time a bill with this scope and lower court division faced the Supreme Court was when portions of F.D.R’s New Deal were ruled unconstitutional. Opponents of this omnibus that passed through the Senate without one single Republican vote hope it faces the same fate.
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