Obamacare: An overview

Tony Petersen

The Supreme Court case concerning the Patient Protection and Affordable Care Act, AKA Obamacare, is one of the more important cases to reach the court in recent memory.

Should the court declare all of the law’s provisions to be constitutional, the federal government will have much more power than it’s ever had before, not to mention the political boost President Obama’s reelection campaign would receive.

If, on the other hand, the court rules that the law — specifically the individual mandate — is unconstitutional, the Obama administration would be dealt a severe blow, and the federal government’s power would be heavily curtailed.

Heading into the oral arguments, many legal experts were predicting that Obamacare would easily be ruled constitutional. The only known “no” was arch-conservative Clarence Thomas.

Along with the four Democratic-appointed justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan), the other four Republican-appointed justices (Anthony Kennedy, Antonin Scalia, Chief Justice John Roberts and Samuel Alito) were all thought of as possible “gets” for the administration, especially Kennedy, Roberts and, to a lesser extent, Scalia.

Scalia, though known as a prominent conservative on the Court, had, in the past, allowed for a more liberal view of the Commerce Clause than many of his supporters: he wrote a concurring opinion for the 2005 case Gonzales v. Raich, which ruled that the federal government could, in fact, regulate or even prohibit the intrastate, noncommercial cultivation of marijuana.

Roberts has judged as a conservative, but he is also known as a justice that puts great emphasis on the Court’s reputation as a nonpolitical body. If there were any justice who would proclaim Obamacare constitutional in the interests of maintaining the Court’s power, it would be Roberts.

Kennedy, however, was the one the administration thought it would get for sure. Since the retirement of Sandra Day O’Connor, Kennedy has been the swing vote on many a 5-4 decision, and his opinions are famously malleable: in the 1992 abortion case Planned Parenthood v. Casey, Kennedy had originally voted with a majority to uphold Pennsylvania’s restrictions on abortion, only to later cast the deciding vote in favor of reaffirming the decision in Roe v. Wade.

It was thought that if Kennedy voted on the side of the administration, Roberts would go with him, if only to ensure a moderate opinion upholding Obamacare, giving Obama a 6-3 decision proclaiming the constitutionality of his principal (only?) domestic achievement.

After three days of oral arguments, however, the “experts” weren’t quite sure exactly which way the justices would go.

After the second day of oral arguments, CNN’s legal analyst Jeffrey Toobin said, “This was a train wreck for the Obama administration. This law looks like it’s going to be struck down. All of the predictions including mine that the justices would not have a problem with this law were wrong.”

Solicitor General Donald Verrilli performed so poorly that 30 seconds of his opening remarks — filled with him stammering and taking long gulps of water — were used for a Republican National Committee commercial arguing that Obamacare was a tough sell.

President Obama, however, remained supremely confident. “Ultimately,” he opined at a press conference, “I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

(Apparently Mr. Obama, in his haste to defend his historic health-care bill, forgot a few things: One, this case is not unprecedented and extraordinary, Marbury v. Madison was; two, the Affordable Care Act passed with not one Republican vote in the House or Senate, and 34 Democratic defections in the House, hardly a strong majority.)

Whether the Supreme Court will strike down Obamacare remains to be seen — while the three days of oral arguments certainly buoyed the spirits of the president’s opponents, most former Supreme Court clerks, including those who clerked for the five Republican-appointed justices, thought that the individual mandate and the Affordable Care Act as a whole would be upheld.

Expect the ruling to be handed down in June, just a couple months before both parties’ national conventions. Should be a fun election.


Tony Petersen is the opinion editor of The Collegian. Follow him on Twitter @tonypetersen4.

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