OMG, it’s finally here! No, not The Hunger Games (ok, also The Hunger Games). Arguments before the Supreme Court on the constitutionality of the Patient Protection and Affordable Care Act, which some clever pundit dubbed the Sicko Cases, begin Monday. They will run two hours per day for three days, for a record-setting six hours. Back when the hearing date and issues were announced, I did some tea leaf reading, but I didn’t talk much about what ultimately might be the most important part of the Court’s decision: the political implications. At the end of the day the ruling is important in legal terms, but not necessarily in policy terms. If Republicans take Congress and the White House, the healthcare law will be gone regardless of what nine old people in robes say.
The vast majority of coverage has been on the issue to which the Court is devoting the most time: whether it is constitutional to require the purchase of health insurance. But the other four hours are potentially as significant, especially politically. In that time, the Court will be looking at whether the rest of the law can stand without the individual mandate, whether the fine individuals who don’t buy insurance pay can be classified as a tax and therefore cannot be challenged under the Anti-Injunction Act until the mandate goes into effect, and whether the law’s expansion of Medicaid is coercive towards the states. I think the Medicaid expansion is all but certain to be upheld; it hadn’t been struck down in any of the lower courts, and a ruling against it would pretty obviously run against more than a century of settled law. But the other questions have been decided in different ways in different lower courts, and so are up for grabs this week. There are all sorts of legal reasoning in play, but as I see it there are essentially four end results: the whole law is upheld, the whole law is struck down, only part of the law is struck down, or the challenge is thrown out under the Anti-Injunction Act.
If the law is upheld, it’s a huge win for President Obama. The Roberts Courts is generally considered conservative — these are the guys who gave us McDonald v. Chicago and Citizens United. If they say the law is constitutional, then Mitt Romney will have a hard time running against healthcare. “It may be constitutional, but it’s bad policy” is a tough argument to make when you implemented the same policy in your own state.
If the whole law is struck down, it gets a little more complicated. Romeny gets to bellow “Unconstitutional!” all summer and fall, and it gives him a distinction between Romneycare and the ACA. Obama can try to run against the Court a la FDR, but it’s a tougher sell than running with them. If the Court strikes down just the mandate, it’s essentially the same thing, but with a lot more arguments over semantics.
Finally, there’s door number 4, the option that everyone hates. I’ve already said that I think it’s unlikely the Court will choose to invoke the Anti-Injunction Act, but it’s not impossible. Then, everybody’s angry with the justices. If they do choose this route, it also means it’s likely they’ll uphold the law under Congress’s tax-and-spend power next time they hear the case, but everyone will be so pissed off with the anticlimax that we’ll probably just all stay home on election day.
Photo Credit: Wikimedia Commons
This week: Rick Santorum won the Louisiana blah blah blah. More importantly, Kazakhstan won the Arab Shooting Championships on Thursday, and the organizers played this: