Over the course of three days this week, the United States Supreme Court heard arguments concerning the constitutional implications of the Patient Protection and Affordable Care Act.
As it stands, the bill is the greatest achievement in domestic policy for the Obama administration and has served as the catalyst for a great deal of the criticism wrought against the president. In question were three distinct issues — the first being whether the bill could be brought before the court since it has not yet gone into effect; the second concerning the individual mandate; and the third regarding the expansion of Medicaid.
There is little doubt in my mind that the justices will vote almost unanimously against the first question pertaining to whether the bill could be brought before the court. The question stands upon a rather obscure 1867 law, which requires a tax to be in effect before it can be challenged in court.
But as several of the justices pointed out to Solicitor General Donald Verrilli, this act cannot really be considered a “tax,” especially when the Medicaid question being considered is one in which the federal government is giving the states — in the words of Justice Kagan — “a boatload of money.”
Although I understand why Verrilli brought this question to the court, it is essentially one that no one wants the court to vote in favor of, since doing so would only prolong the debate over Obama’s health care bill, which is something neither Republicans nor Democrats want.
The second and third questions are the truly important — regarding the most popular attacks against the health care act. With regard to the individual mandate, I have a difficult time thinking that the court would not declare it unconstitutional.
Although I do not necessarily think Justice Antonin Scalia’s sarcastic “broccoli” attack is justified, the justices certainly seem susceptible to the notion that this extension of congressional authority sets a dangerous precedent.
With regard to the third question, I feel the court will be closely split, and I cannot make any serious predictions. The four liberal justices lead by Elena Kagan did a wonderful job defending the government against Paul Clementi’s attack (better than Verrilli did), and Chief Justice Roberts even seemed to sympathize with the liberal argument at times.