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Healthcare Showdown: Supreme Court Hears Arguments over Legality of 'Obamacare'

Supreme Court may determine the fate of Obama's landmark health reform

Common Dreams staff

Barack Obama signs the Patient Protection and Affordable Care Act in March 2010. The constitutionality of the law is now being reviewed by the Supreme Court. (photo:

Update: Arguments from the first day have concluded and, according to the New York Times, the hearing consisted of a "90-minute debate over whether the Court yet has the authority to hear the case."

"Lawyers for both the Obama administration and challengers to the law took the same side on this question, arguing that the Court could hear the case now," the Times reports. "The justices appeared receptive, suggesting that they will reject the argument made by an outside lawyer that it is too soon to rule."

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The Supreme Court began hearing oral arguments this morning that will determine if the Patient Protection and Affordable Care Act of 2010 (otherwise known as Obamacare) violates the Constitution. The arguments are expected to last three days and will analyze the legality of several key aspects of the bill. The most pressing questions the Court will hear relates to the lawfulness of the individual mandate -- a provision that mandates consumers purchase health insurance or face a tax penalty -- and whether or not the law can remain on the books if the mandate is struck down.

Republican opponents of the law hope a decision to overturn Obamacare, and effectively derail Obama’s most hard-fought legislative accomplishment from his first term, would serve as a decisive political victory for conservatives. Progressives are generally more supportive of the Patient Protections and Affordable Care Act, viewing it as a step towards addressing the nation’s healthcare woes. The United States currently has more than 46 million citizens without any insurance and an estimated 20,000 people die each year due to a lack of health insurance. The United States also has the most expensive healthcare in the world, accounting for about 17 percent of the nation’s gross domestic product -- almost twice as much as other developed nations.

Some progressives, however, are skeptical of the benefits of an individual mandate, an idea that first entered the national debate in 2006 when Mitt Romney, then-Governor of Massachusetts, signed a health reform bill implementing an individual mandate in Massachusetts. Kuttner, writing in the Huffington Post, argues that progressives might be better off pursuing a single-payer healthcare system, which “would have been beyond constitutional challenge.”

“Medicare is a single payer program for the elderly, and nobody challenges its constitutionality. Toss out the mandate, and single-payer might be taken more seriously,” Kuttner writes. “Bottom line: If the Court were to overturn the individual mandate, one of the worst provisions of the Affordable Care Act, it would be no tragedy. It might well do some wider good.”

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Absolutely everything you need to know about health reform’s Supreme Court debut (The Washington Post):

The individual mandate

What it is: The most-contested part of the health reform law, the Affordable Care Act’s individual mandate requires nearly all Americans to carry health insurance. The legal question centers on whether such a regulation is permissible under the Commerce Clause, which allows the federal government to regulate interstate activity.

What they’ll argue: Health reform opponents contend that the decision not to do something — namely, not buy health insurance — is economic inactivity, rather than activity, and therefore not a behavior the federal government can regulate. Health reform supporters argue that the decision to not purchase health insurance has an economic effect. An individual without coverage, for example, may not have the money to pay for an emergency room visit, sticking hospitals or taxpayers with the bill.

When it happens: Tuesday, March 27, 10 a.m. - 12 p.m.

Why it matters: With no penalty for not purchasing health insurance, but a requirement for insurers to accept anyone still standing, many expect the costs of insurance would skyrocket. Congress could, theoretically, replace the individual mandate with another policy that doesn’t run afoul of the activity-inactivity distinction but it is unlikely that congressional Republicans would permit such a fix, at least in the near term.

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Health Reform's Day In Court: Don't Bet The Farm On The Mandate (Robert Kuttner, The Huffington Post):

Opponents argue that the mandate represents a new, dangerous, and unconstitutional infringement on liberty. The decision will be treated by commentators as either a huge victory or momentous defeat for President Obama, and either another dangerous over-reach by a right-wing court, or a prudent retreat by the court's conservatives.

But this may be a complete misreading of the logic and the stakes.

The individual mandate may or may not be unconstitutional, but it's dubious policy. And it would not be a fatal setback if the Court did find that it violated the Constitution.

The Administration, in my view anyway, has made both a tactical and a Constitutional error in arguing that if the mandate is unconstitutional, so are other key provisions of the act. If the Court were to strike down the mandate but not the rest of the Act, the insurance industry would be all over Congress to find another way to solve the free-rider problem. As my colleague Paul Starr has demonstrated, that would not be difficult.

Instead of being required to purchase private insurance, people without employer-provided insurance or access to Medicaid could be given a choice -- either buy affordable insurance through the exchanges, or deliberately opt-out of coverage. But if they opted out, they would be precluded from getting insurance through the exchanges for five years. This use of incentives would be constitutional, and would be sufficient to induce most people to get insurance, but less coercively than a mandate. Starr also proposes that people could pay an annual fee to preserve their right to buy insurance after a waiting period of only a year.

The point is that if the best we can do politically is a mixed system such as the Affordable Care Act, there are perfectly good alternatives to a mandate should the mandate be struck down.

There is also a delicious irony here. If conservatives on the Court were to decide that a federal mandate requiring citizens to purchase commercial products has no basis in the Constitution, it would usefully doom another favorite conservative project -- privatization of Social Security. Obviously, if Congress cannot require citizens to buy private health insurance, neither can Congress use tax dollars to require citizens to purchase commercial pension offerings.


One further irony: As a little-noticed amicus brief by two organizations and fifty physicians who support national health insurance points out, if the government had simply enacted a single payer program, it would have been beyond constitutional challenge -- because government has an unambiguous power to tax and to use the revenues for public purposes. Medicare is a single payer program for the elderly, and nobody challenges its constitutionality. Toss out the mandate, and single-payer might be taken more seriously.

Bottom line: If the Court were to overturn the individual mandate, one of the worst provisions of the Affordable Care Act, it would be no tragedy. It might well do some wider good.

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Herman Cain, Tea Party Activists Rally Against 'Obamacare' (ABC News):

Hundreds of Tea Party activists rallied in Washington today, demonstrating just days before the Supreme Court hears arguments on the constitutionality of the Affordable Care Act. With the outline of the U.S. Capitol behind them, conservative organizers urged the judiciary to overturn the legislation and called for the defeat of President Obama in the November election.

Former Republican presidential candidate Herman Cain was the keynote speaker at the event. Standing in a light rain, Cain told supporters he may not have survived his battle with cancer had he sought treatment under the new law.

“That’s what this is about,” Cain said. “The freedom to choose our own doctors. The freedom to choose our own health insurance plan.”

Virginia Attorney General Ken Cuccinelli told the crowd the upcoming elections were their chance to restore the Constitution. His state is one of 26 challenging the Affordable Care Act through lawsuits in the high court.

“[President Obama] and this administration represent the greatest set of lawbreakers to ever run the federal government in our lifetimes,” Cuccinelli said. “The rule of law itself is at stake.”

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