Obamacare’s Day In Court

I’ve always had a love hate relationship with the Supreme Court. Some of the things I love are its rulings in Roe V. Wade, Brown V. Board of Ed, and all of the other rulings the courts have made that expanded constitutional protections and tried to create a more equitable and better America. Some of the strikes against the court are Bush V. Gore, Plessy V. Ferguson, and an extremely boring Constitutional Law class I took during my senior year of high school. Ironically, this class was taught by the brother of current justice Elena Kagan but that’s neither here nor there.

I’ve always thought there was something a little screwy with the system of lifetime appointments. Think about the fact that Reagan appointees Justices Kennedy and Scalia literally outlived the man who appointed them, and you can see how Supreme Court nominees are one of the most lasting legacies a president can have. I understand that the framers thought that life time appointments would protect justices from political pressures, but in reality it’s just allowed them to stick with their own politics regardless of how out of touch they are. Consider Citizens United, the 5 conservative justices, spearheaded by Bush appointees Roberts and Alito, essentially stripped all limits on the influence money can play in political elections. The ruling is wildly unpopular and has been slammed by both Republicans and Democrats, and yet the dogmatic justices were able to impose this law with impunity.

Today, the Supreme Court is the focus of a legal challenge to strike down “Obamacare”. “Obamacare”, of course, is the Health Care reform law passed by Obama in 2010. The law was the subject of great debate at the time, with Republicans shrieking about “death panels” and decrying the law as putting us on the path to socialism. These critiques ignore the fact that the law, which does some good things, was a fairly tepid measure. While it allows kids to stay on their parent’s healthcare until they are 26, ends lifetime caps, and protects against discrimination against people with “pre-existing conditions,” it doesn’t do much to change the paradigm of American health care. That health care is considered to be big business in America, as opposed to something that should be thought as a human right is evidence of the debased nature of American capitalism, though I suppose that sentiment makes me more radical than Karl Marx. Perhaps the best evidence of the modesty of “Obamacare” is that it’s based on a blueprint drawn up by Mitt Romney during his tenure as governor of Massachusetts, a point that might have been brought up at least once or twice during the GOP primary.

The crux of the argument of those who claim “Obamacare” is unconstitutional is that the mandate that everyone must have healthcare is an overreach by the federal government. Ironically, mandates were a Republican idea during the 1990s. One of the key questions is whether the mandate is a tax or a penalty. The reasoning behind the mandate is that older and sicker insurance consumers will be subsidized by everyone else’s insurance premiums or the penalty they’ll be forced to pay. For what it’s worth, polls seem to indicate that the majority of Americans think the mandates are unconstitutional, and that only a slim majority support “Obamacare.” In recent weeks, the Obama administration has been more stridently defending the Health Care law. Last Friday, I got an email from David Axelrod, (I get more spam email soliciting me to donate to Obama than to check out nudie pix) which said he was “proud as hell about Obamacare.” I don’t want to relive the agony of the original healthcare debate, but suffice it to say I think Obama did a fairly good job given the political reality he faced.

The decision will likely be a 5-4 ruling, with Justice Kennedy casting the decisive vote. The court’s liberal and conservative blocs are so entrenched that it would take an act of God to swing any of those justices. The quality of arguments in the Supreme Court don’t seem to make a dimes worth of difference, justices have their political opinions and follow them pretty rigidly, though this is no new development. The Supreme Court was supposed to be a non-partisan entity, but it seems it’s become just as partisan as the rest of government with no accountability to the public.

Jonah Redel-Traub is a blogger from New York City. Recently graduated from the University of Wisconsin, Mr. Redel-Traub started The Redel Traub Report, which features his hard hitting, insightful, tre ...read more


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