Friday was the second anniversary of the Health Care Reform legislation formally known as the PatientProtection and Affordable Care Act (PPACA). President Obama signed the landmark measure into law Tuesday, March 23, 2010. Two days ago, and three days after the Act’s second anniversary, the Supreme Court undertook an historic three-day review of the law. Early conjecture holds the Justices will likely render a decision in June, a month during which major cases are frequently decided.
While there are arguments big and small to be settled this week, they have for the most part been divided discreetly among the three days. The sequencing of question ensued thusly:
1. Monday – Was the challenge brought too soon?
2. Yesterday – Can Americans be forced to buy health care?
3. Today – Two separate queries will be examined;
a) Can the law as a whole survive if the “individualmandate” is found to be unconstitutional?
b) Can the government require the states to extend Medicare – a federal program for low-income Americans – to a larger pool?
As it relates to the first question, there is an 1867 statute, the Anti-Injunction Act, which prohibits hearing a tax challenge before the tax goes into effect. Early indications gleaned from Monday’s questions are the justices will reject the notion that penalties for not buying health care equate to taxes.
The Court asked Washington
A U.S. Appeals Court panel from the 4th Circuit sided with this argument. However, the Court asked Long to make the argument because neither the Obama administration nor the law’s challengers agree with it. Several of the justices, including Stephen Breyer and Antonin Scalia found this argument wanting.
Justice Breyer noted that “being collected in the same manner of a tax doesn’t automatically mean it’s a tax, particularly since the purpose of the Anti-Injunction Act is to prevent interference with the revenue stream. This legal challenge does not interfere with revenue collection.”
Justice Scalia observed, in apparent concurrence, “As a matter of principle, the courts should not be deprived of jurisdiction in cases unless the reasoning is very clear. I find it hard to think this is clear, whatever else it is.”
Acting on the government’s behalf, Solicitor General Donald B. Verrilli contended the justices should proceed to deciding the merits of the case. He said, “This case presents issues of great moment, and the Anti-Injunction Act does not bar the court’s consideration of those issues.”
Verrilli, however, found himself in a precarious position. For while on Monday, he argued the Healthcare Law was not a tax, he is expected to argue later in the case that Congress is within its authority to pass the health-care law, at least in part, because of its ability to tax. A fine point Justice Samuel Alito found significant enough to mention.
Part of the historic majesty and mystery in which the Supreme Court is cloaked in stems from the relative detachment its Justices can maintain due to their lifetime appointments. Though several Justices have retired in the last six years, namely, Sandra Day O’Conner, David Souter, and John Paul Stevens, it should be noted they did not have to. It is not uncommon for Justices to serve until incapacitation or death. Perhaps the resulting arc of time that their individual tenures can cover has resulted in recent decades’ appointees being more closely associated with the ideological bent of their appointing President…though this is precisely the morass that is intended to be alleviated by their lifetime appointments.
Currently the nine-member Court includes consists of 5 Justices appointed by Republicans, and 4 appointed by Democrats. The breakout is:
· Stephen Breyer, Associate Justice (President William J. Clinton, 1994)
· Samuel Alito, Associate Justice (President George W. Bush, 2006)
· Elena Kagan, Associate Justice (President Barack Obama, 2010)
The three retired living Justices are:
· Sandra Day O’Conner, Retired (President Ronald Reagan, 1981-2006)
· David Souter, Retired (President George H. W. Bush, 1990-2009)
· John Paul Stevens, Retired (President Gerald Ford, 1975-2010)
While there has usually been an effort by Supreme Court nominees to avoid major controversy during their confirmation hearings, a variety of interest groups lobby, often fiercely to block or derail the nominations. Occasionally, once the rigorous scrutiny of the confirmation process is over, nominees who win confirmation prove to be more balanced/less ideologically pure than anticipated…or sometimes hoped.
Of the current Justices, Anthony Kennedy is most often viewed as a potential swing vote; or someone who might be swayed by the weight of reason rather than just politics or ideology. Therein lies the crux of some early concern about the fate of the Health Care Law. In yesterday’s second day review, Justice Kennedy posed questions that seemed to augur skepticism about the constitutionality of the PPACA.
Justice Kennedy in a combo statement-query said, “I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the constitution?"
So today, as scheduled proceedings are expected to conclude, the answer to the question of whether the health care legislation that is still not scheduled for full-implementation until years from now will survive is still a very dicey proposition. Stay tuned. This very public, but polite part of the process is about to conclude. Over the next few months, the political Battle Royal unfolds as Republicans challenge President Obama for the right to assume the next four-year lease on the White House. Expect the discourse to be impolite, and the tone to be down right hostile. But in the final analysis, remember, when it comes to the “Patient Protection and Affordable Care Act (PPACA): It’s The High Court’s Call!”
I’m done; holla back!
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