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U.S. Supreme Court holds Obamacare's future in its hands

President Barack Obama's visionary, if mostly reviled, health-care reform law turned two this week, but all bets are off as to whether it will see its third birthday.

The most sweeping U.S. social-policy initiative in four decades has been fighting for its life in the court of public opinion since it was a mere twinkle in its father's eye.

It has been losing – badly. Republicans have successfully (if disingenuously) branded "Obamacare" as a "government takeover" and polls show that more than half of Americans want it repealed even before its main provisions take effect in 2014.

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Two years after its passage, and arguably the biggest backlash in modern American politics, the fate of the Patient Protection and Affordable Care Act now lies in the hands of the U.S. Supreme Court. The court undertakes hearings Monday into the law's constitutionality and the stakes could not be higher.

Not only will Mr. Obama's signature domestic policy initiative be on trial, facing its own life-or-death panel as it were, the President's legacy and re-election prospects will be shaped by the outcome of the case brought against him by 26 Republican-led states.

"This would be the most consequential invalidation of a federal law since the constitutional crisis of the Great Depression and New Deal," said Duke University law professor Neil Siegel, referring to the court's 1930s move to kill parts of Franklin Roosevelt's massive package of social welfare reforms.

That it has come to this is ironic considering the main bone of contention – the law's so-called individual mandate requiring those without employer-provided health insurance to purchase private coverage on their own – began its life as a Republican idea.

Hatched by the right-wing Heritage Foundation in 1989, the concept was long championed by the likes of Newt Gingrich and Mitt Romney as an alternative to the Canadian-style single-payer system traditionally favoured by Democrats.

Forcing the uninsured to buy insurance – lower-income Americans getting subsidies to do so – was seen by Republicans as a way to encourage personal responsibility. It was also seen as a way to solve the free-rider problem. (The uninsured flood emergency rooms, leaving it to those with insurance to pick up the tab in the form of higher premiums.) Indeed, Mr. Romney liked the idea so much he implemented it when he was governor of Massachusetts. But Republicans turned against a federal mandate once Mr. Obama embraced it. They now decry it as an assault on individual freedom.

"The mandate's threat to liberty is obvious," says the brief filed before the court by Paul Clement, the high-profile GOP lawyer who will argue the case against Obamacare. "It is a revolution in the relationship between the central government and the governed."

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Prof. Siegel, who served as special counsel to then-senator Joe Biden during the 2005 confirmation hearings of Supreme Court Chief Justice John Roberts, disputes that: "The idea that [the mandate]is some unprecedented assault on America and its values is belied by history. This was a compromise position compared to single payer."

Opponents of the law argue the U.S. Constitution does not allow the government to compel individuals to participate in a market – in this case, the health-insurance market – against their will. That would be tantamount to regulating economic "inactivity." Two federal appeals courts disagreed, while a third struck down the law on this basis.

The Obama administration and the law's proponents counter that every American already participates in the health-care market, since everyone consumes health care at some point in their life. The mandate merely puts conditions on that participation.

"You're not inactive if you're generating $50-billion in costs annually for other people," Prof. Siegel explained, referring to estimated costs currently engendered by the uninsured.

The Obama law contains a plethora of provisions that would likely be impossible to maintain without a mandate. They include new rules that prohibit insurers from denying coverage to people with pre-existing conditions, ending lifetime dollar limits on coverage and stopping insurance companies from cancelling policies when customers get sick.

Many insurers would simply go out of business if only unhealthy people bought insurance. The mandate solves that problem by ensuring healthy people are rolled into the same risk pool as the sick.

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The Supreme Court has set aside three days and six hours, for oral arguments – the most time accorded to a single case since one involving the Voting Rights Act in 1966.

Republicans had pushed for Justice Elena Kagan, Mr. Obama's former solicitor-general whom he appointed to the court in 2010, to recuse herself. That didn't happen.

As a result, Mr. Obama can likely count on at least four judges, those comprising the court's liberal wing, to uphold the law. Finding a fifth vote (there are nine members of the court) will be the key to Obamacare's survival. Alternatively, Justice Anthony Kennedy could side with the court's four conservatives to strike down the law.

Mr. Obama did not publicly celebrate the second anniversary on Friday of his proudest domestic policy achievement – even though bringing most of the 50 million Americans without health coverage under the insurance umbrella has been a goal of Democratic and Republican administrations dating back to Harry Truman.

But can you blame him? Obamacare, like its creator, is a lighting rod for reasons that likely have more to do with raw politics than true ideological differences.

Now, a Supreme Court that is no stranger to politics may get the final say.

GOP vs. Obamacare

The U.S. Supreme Court will begin hearing arguments on Monday into whether President Barack Obama's controversial health-care reform law is constitutional. The law is being challenged by 26 Republican-led states and a group representing small-business owners. They argue Congress exceeds its powers by forcing people to buy health insurance.

What must the court decide?

At the heart of the case is the so-called individual mandate, which requires Americans who do not have health insurance through their employer or a government program such as Medicare to purchase it on their own. The law provides for subsidies for low- and middle-income earners to buy insurance, starting in 2014.

Republicans have decried the law as an "unprecedented" assault on individual freedom and a "government takeover" of health care. They argue that the Constitution's commerce clause, under which the federal government can regulate interstate commerce, does not allow it to compel people to buy any product simply because they are alive.

What's at stake?

The court's ruling, expected in June, will shape Mr. Obama's political legacy by either gutting his signature domestic policy initiative or vindicating his attempt to provide coverage for millions of Americans without health insurance.

Whatever the court decides, the ruling is certain to have an impact on the fall presidential election. If the court upholds the law, Republicans could use the decision to mobilize Tea Party supporters to oust Democrats in the election. The GOP vows to repeal the law if it wins control of Congress and the White House in November.

How's it looking?

There is wide consensus among constitutional experts that the four liberal judges on the court, all nominated by Democratic presidents, will vote to uphold the law. Justice Clarence Thomas, a George H. W. Bush nominee, is expected to vote to strike it down. The law's fate could lie with Judge Anthony Kennedy, considered the court's swing vote. If he sides with the court's liberal wing, Chief Justice John Roberts could join him.

- Konrad Yakabuski

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About the Author

Columnist Konrad Yakabuski writes on politics, policy and business for The Globe and Mail’s Comment section and Report on Business. More

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