The U.S. Supreme Court is set to review the constitutionality of the Affordable Care Act in March 2012, the legislative health care reform package many opponents refer to as “Obamacare.” From the 2008 election forward, President Barak Obama’s efforts to address rocketing medical and insurance costs have been the subject of contentious public debate. Now, with the law’s constitutionality set to be debated in the nation’s highest court just three months into the coming presidential election season, health care will be at the forefront of an even more politically explosive climate.
Opponents Target Mandatory Health Insurance Requirement
Conservatives are pulling out all stops to regain the White House in 2012. The provision of the health care law on which they focus much of their ire, is the requirement for all Americans to carry health insurance by 2014. By its design, the law bases the constitutionality of the coverage stipulation on the Commerce Clause of the Constitution. That portion of the document reads, in part:
“The Congress shall have power … to regulate commerce with foreign nations, and among the several states and with the Indian tribes.”
Opponents of the Affordable Care Act’s provision mandating personal medical insurance contend that while Congress has both the power and the responsibility to regulate interstate commerce, the Constitution does not give it the authority to compel citizens in a free marketplace to buy a particular product like insurance coverage.
Health Care to Make a Unique Supreme Court Hearing
Twenty-six states have joined together to challenge the law in the highest court in the land. Their case will be presented by Paul D. Clement of Bancroft PLLC. As a bid to the highly complicated and controversial nature of the case, an unprecedented 5.5 hours have been allotted for arguments before the justices.
If the Court rules according to the usual interpretational positions of the individual justices, the “swing vote” will likely fall to Justice Anthony Kennedy. Consequently, much attention is being paid by pundits and the media to Kennedy’s voting record in an attempt to guess how his decision would likely fall.
Justice Anthony Kennedy Could Be Swing Vote
Kennedy, 75, was appointed to the court in 1988 by President Ronald Reagan, and has frequently played the deciding role in major cases. Over the years, Kennedy has proven to be liberal on matters of free speech and gay rights, but conservative on parts of the Constitution like the Establishment Clause which prohibits the stipulation of a national religion.
Kennedy has always exhibited a strong interest in the power of the federal government to create and to maintain the national economy in an integrated sense, but he is also a supporter of “states rights.” His mixture of views on federalism and individual liberty make it difficult to hazard a guess on his position on the health insurance mandate.
Opponents Also Seek Justice Kagan’s Recusal
Other conservative groups are calling on Justice Elena Kagan, 51, to recuse herself from the health care case. Appointed to the Court by President Obama in 2010 to replace retiring Justice John Paul Stevens, Kagan served as solicitor general in the Obama administration. Ironically, were she still serving in that capacity, she would be defending the health care law before the very Supreme Court on which she now serves.
During her confirmation hearings, Kagan answered questions regarding the inevitability of the health care law’s constitutionality being tested before the Court and said she had played no part in crafting the legislative package or preparing the administration for its defense. This denial was confirmed by Attorney General Eric H. Holder Jr. who said that all efforts were made to ensure Kagan was in no way involved in legal discussions about the health care reform law. Kagan shows no sign of recusing herself, which is always a voluntary option for a Supreme Court Justice.
Public Opinion on Health Care Reform Divided But Strong
According to research conducted by the Kaiser Family Foundation in November 2011, most Americans still do not understand the major provisions of the Affordable Care Act, but 44 percent still view it unfavorably. Approximately 37 percent of those surveyed support health care reform as it currently exists, with roughly 19 percent undecided or disinterested.
Most analysts agree that the displeasure many Americans show with health care reform is actually an extension of the discontent evident across the nation with Washington politics. Much of that negative sentiment is aimed at financial regulations and institutions that benefit the wealthy, but which is causing the erosion of the middle class in America.
When the health care law was broken into components for the survey, some aspects were viewed favorably even by the Republican opposition. A resounding 84 percent, for instance, are in favor of the requirement for insurance companies to provide easily comprehensible benefit summaries. The second most popular provision was that awarding tax credit to small businesses, with 80 percent approval.
People also like the idea of subsidies to help individuals afford health insurance with an eye toward closing the “doughnut hole,” those policy coverage gaps where services and prescription medications revert to full cost. Additionally, the public supports banning the practice of coverage denial based on pre-existing conditions.
However, the individual mandate for consumers to purchase health insurance by 2014 is highly unpopular, with 63 percent opposing the requirement, and of those, 43 percent describing their feelings toward the requirement as “very” unfavorable.
Many See Health Care Requirement As an Infringement on Personal Liberty
Although most Americans do not really understand the complete health care reform package, it is typical for citizens to resist being made to do something by the federal government. The perception in the public is that health care reform will primarily help lower income Americans and have little effect on the middle and upper classes. However, being compelled to purchase coverage, like the existing mandate to carry auto insurance, will affect all Americans.
In March, however, the Supreme Court justices will not be voting according to public opinion, but by the standards of constitutionality it applies to every case it reviews. The fine points of existing interstate commerce law, both in its codified forms and based on prior decisions by the court, will be the basis of the opinion they ultimately deliver.
The affect the vote will have on the election season is also difficult to determine. If the law’s constitutionality is upheld, public ire could go against President Barak Obama in his bid to win a second term. But by the same token, if the provision of the law is declared unconstitutional, voters may see it as a victory for conservatism in the U.S. that will throw more support behind the Republican candidate.
Regardless, however, as 2012 opens, and as March draws nearer, health care will once again be front and center in the American political debate, and it will remain as controversially charged as ever. Given the existing climate of discontent clearly illustrated by the numerous “occupy” demonstrations, this will be a major factor crafting public sentiment in the November presidential elections.