The U.S. Supreme Court recently held three days of hearings on a series of challenges filed against the Patient Protection and Affordable Care Act, the landmark health insurance reform bill signed into law by President Barack Obama in early 2010 after nearly a year of discussion and debate in Congress.
At issue is whether several provisions in the law are constitutional, especially the provision requiring Americans to either buy health insurance or pay penalties (known as the individual mandate).
The Supreme Court has made audio and transcripts of all the hearings available on its website, www.supremecourt.gov, as well as the text of briefs filed by the different parties in the lawsuit. These are well worth reading and listening to. The transcripts and audio provide a much deeper introduction to the issues the Supreme Court will be grappling with over the next few months than any newspaper article or evening news broadcast could hope to offer. Every civic-minded citizen with a computer ought to take a look at the materials the Supreme Court has made available.
Owing to our system of government, where power is divided at different levels, most of the parties are governments, rather than private organizations. Just more than half of the 50 states are involved in one of the challenges to the Patient Protection and Affordable Care Act – though some, like Washington state, are participating in the suit against the wishes of their governor and legislative leaders. The Department of Justice, meanwhile, is defending the law on behalf of Congress and the Obama administration.
The Department of Justice contends that the Affordable Care Act addresses a fundamental and enduring problem in American society: access to health care.
“For most Americans – for more than 80 percent of Americans – the insurance system does provide effective access,” Solicitor General Donald Verrilli told the Supreme Court March 27. “But for more than 40 million Americans who do not have access to health insurance either through their employer or through government programs such as Medicare or Medicaid, the system does not work. Individuals must resort to the individual market, and that market does not provide affordable health insurance.”
The attorney generals for more than two dozen states and several conservative organizations (including the right wing National Federation of Independent Business) argue otherwise. The states’ representative, Paul D. Clement, is urging the Supreme Court to set aside the Patient Protection and Affordable Care Act in its entirety — not just the controversial individual mandate provision.
“I certainly appreciate what the Solicitor General says, that when you support a policy, you think that the policy spreads the blessings of liberty. But I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not,” Clement told the Supreme Court. “And it’s a very strange conception of federalism that says that we can simply give the states an offer that they can’t refuse, and through the spending power which is premised on the notion that Congress can do more because it’s voluntary, we can force the states to do whatever we tell them to. That is a direct threat to our federalism.”
During the oral arguments, the court’s more conservative wing (Justices Scalia, Thomas, Alito, Roberts, Kennedy) took the lead in interrupting Verrilli and peppering him with questions, while the court’s more liberal wing (Justices Breyer, Sotomayor, Ginsburg, Kagan) took on Clement. Many pundits have suggested that the liberal wing appears inclined to uphold the Affordable Care Act, including the mandate, while the conservative wing seems inclined to strike it down.
But the tenor and substance of oral argument don’t necessarily predict the outcome of a case. Justices often play devil’s advocate during oral argument, and consider the merits of arguments against the position they may personally favor. The case may well depend on what conclusions Justice Anthony Kennedy reaches, for he is widely considered to be the swing vote on the Supreme Court. If the other conservatives decide the Affordable Care Act is unconstitutional, and Kennedy joins them, the law will be struck down. If Kennedy joins the liberals, the law will probably be upheld.
A decision is expected in late June.
Andrew Villeneuve, a 2005 Redmond High graduate, is the founder and executive director of the Northwest Progressive Institute, a Redmond-based grassroots organization. Villeneuve can be reached at andrew@nwprogressive.org.
