Constitution Check: Is the fight over Obamacare over, in the courts and elsewhere?
Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at two developing lawsuits in lower courts, both based on constitutional claims, that may threaten Obamacare and could reach the Justices within the next year.
President Obama signs the Affordable Care Act
THE STATEMENTS AT ISSUE:
“While the Affordable Care Act is certainly the ‘law of the land,’ as it has been since its enactment, nothing in the Court’s decision today imparts any additional legitimacy on this law as a public policy meriting political acquiescence….Nothing in this decision should deter Republican presidential and congressional candidates in the 2016 elections from continuing to press their campaign to ‘repeal and replace’ Obamacare.”
– Excerpt from a column by Georgetown Law Center professor Randy Barnett, published on the website SCOTUSblog.com on Thursday, reacting to the Supreme Court decision in King v. Burwell upholding nationwide subsidies to help poorer people buy health insurance.
“To my Republican colleagues, I say respectfully: stop banging your heads against the wall trying to repeal the Affordable Care Act. It’s time to move on.”
– Excerpt from a comment Thursday by U.S. Senate Democratic leader Harry Reid of Nevada.
“We hope this decisive 6-3 ruling finally puts an end to politically motivated, grossly irresponsible attacks on the Affordable Care Act….We urge every member of Congress, every lawmaker and every politician to search their consciences and finally end the attempts to defund or derail the ACA.”
– Excerpt from a statement Thursday by Debra L. Ness, president of the National Partnership for Women and Families.
“The Supreme Court appears to be signaling that the future of health care reform must be fought out exclusively in the political arena….Although other challenges to health care reform are inevitable, the court is sending a strong signal that it will not reach for opportunities to interfere with the ACA’s central features.”
– Excerpt from a statement by Georgetown Law Center professor David Super on Thursday.
WE CHECKED THE CONSTITUTION, AND…
At no time in constitutional history can it be said, with confidence, that all three branches of the national government were operating in perfect harmony. In fact, the Founders wanted some ongoing tension between them, to maintain “checks and balances” so as to prevent the concentration of government power in any one branch. That arrangement reflected the genius of James Madison.
This recurring disharmony can run very deep, and it can keep going for a while. America has been witnessing just such an episode in the last five years, with “Obamacare” as a prime example. From its enactment in March 2010, it has been an abiding source of very conspicuous dispute and even acrimony. The fight over that major law overhauling the nation’s health insurance system, the Affordable Care Act, has involved all three branches in Washington.
Of course, that fight has been very much out in the open, at least so far as it involved President Obama and the Republican leaders in Congress. Obama won passage of the law with almost no Republicans in support, increasing GOP resentment, and the House of Representatives has voted dozens of times to repeal the entire law, increasing White House resentment.
But when the Supreme Court gets into a fight like this one, it may be targeted for political criticism but it does proceed in a more decorous fashion, following the somewhat staid processes of judging. And the fact that the court does much of its work, as it has on Obamacare, behind closed doors – at least until a final decision emerges – makes it harder for its critics to maintain continuous volleys of complaint. Perhaps that helps intensify the reaction when the decision does emerge, disappointing one side or the other.
The court has now stepped into this fight twice, and each time it has salvaged a core part of the law – results so important to the ongoing success of the law that Justice Antonin Scalia, has just argued cynically in a dissenting opinion that it should be known, not as “Obamacare,” but as “SCOTUScare.” Scalia’s criticisms were echoed elsewhere among conservative commentators, in and outside of the academy and politics.
It is, of course, an exaggeration to suggest that, because the court has now spoken, the country can move on, finding something else in public policy to debate. But even the court cannot realistically expect that its part in the struggle is at an end.
There are two developing lawsuits in lower courts, both based on constitutional claims, that may threaten Obamacare and could reach the Justices within the next year.
One is a new constitutional challenge to the individual insurance mandate in the law – the mandate that the Supreme Court upheld three years ago. The argument is that, since the Supreme Court declared that provision to be based upon a penalty operating as a tax for those who do not obtain health insurance, the provision should have originated in the House of Representatives (the Constitution’s Article I, Section 7, says that all revenue measures must begin in the House).
The other lawsuit is the one by the Republican leaders of the House, contending that the Obama administration acted illegally in postponing an insurance mandate for employers and in arranging to pay health care purchase subsidies to insurance companies.
Although the court may ultimately have something to say about one or both of those legal claims, there is another layer of controversy that involves the court. What it has done on Obamacare is almost certainly going to be an issue in the presidential and congressional election campaign next year, making future appointments to the Supreme Court a potentially major issue in the political realm. The Justices can merely sit on the sidelines to watch how that one plays out, although they very likely will be quite interested.
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