US Supreme Court decides fate of Obama’s healthcare law

There has not been a case like this since the 1960s: at stake, the flagship achievement of the Obama presidency and the future of America’s entire healthcare system. And all in a crucial election year, when the fortunes of both political parties are irrevocably linked to rival visions of government, of the constitution, and the limits and scope of federal power.

Unprecedented hearing

Queues for the few unallocated seats at this historic hearing began forming three days ago, while hundreds of protesters on all sides have been rallying outside, an eclectic mix of Tea Party activists, healthcare professionals, liberals who support the law, conservatives who want it struck down. Inside, attorney generals from 26 states, plus an independent business group, are arguing that the requirement for all Americans to have a minimum health insurance coverage (the “individual mandate”) is constitutional. And if not, should the court strike down the entire law?

So the nine justices have begun hearing a remarkable six hours of legal arguments over the Affordable Care Act, otherwise known as Obamacare. It is remarkable not just for the sheer length of the hearings, but the fact that it reached the court at all. Two years ago, when President Obama signed his reforms into law, most people thought the idea of a legal challenge was a pretty fringe opinion, at best. Yet, fuelled by Tea Party rallies in the summer of 2010, and now a key political cause for Obama’s Republican challengers, what was once considered off the wall, has now become mainstream.

The Broccoli question

Opponents of the mandate argue that Congress has exceeded its powers by forcing people to buy health insurance, or pay a penalty. They say the state is interfering too deeply in peoples’ lives, and if it can make them buy insurance, it could also make them buy broccoli, or American cars: the so-called “Broccoli question”.

The government disagrees, arguing that they have the power under the constitution’s commerce clause, or under its tax-raising powers. But the justices won’t even get around to that issue until Tuesday. First they have to decide if they can even rule on the issue, given that no-one will be paying a cent until 2014.

If, as predicted, they allow the arguments to proceed, they’ll also have to decide whether the fate of the entire Act has to be linked to the mandate – or whether it could survive without it. And whether Congress has the authority to make states expand the free Medicaid health care programme for the poor and disabled, benefiting a potential 17 million uninsured Americans by 2021.

Bench marks

Of course, in such a volatile and highly polarised political environment, it’s proved impossible to separate the purely legal, from the overtly political. Of the nine justices on the bench, four were appointed by Democratic presidents, and are certain to not to strike down the act. Five were Republican appointees: liberals hope that two of them, Justice Anthony Kennedy and Chief Justice John Roberts, will follow suit.

You want to call it Obamacare? That’s OK, because I do care. President Barack Obama

The Supreme Court is not known for handing down radical judgements, and, says Slate legal expert Dalia Lithwick, the conservatives may be saving their battles for a host of controversial cases to come, on abortion rights, gay marriage, affirmative action and the Voting Rights Act.

If it were up to public opinion, Obamacare would already be toast. Some four out of 10 Americans think it has been struck down already. A New York Times/CBS poll on Monday shows 47 per cent of people disapprove of the measures, with just 36 per cent in favour, perhaps partly because the changes aren’t yet being felt. Some of this is undoubtedly down to the Obama administration’s failure to champion the reforms – losing sight of the message by concentrating instead on the economy, and jobs.

Republican cause

It has left the field clear for the Republicans to frame it as a gross intrusion into personal choice. The would-be presidential contenders have relentlessly condemned it, labelling it “clearly unconstittuional”, even though Mitt Romney brought in a similar individual mandate provision when he was governor of Massachussetts, and Newt Gingrich proposed a mandate as part of his opposition to Hillary Clinton’s health care proposals in 1993.

But as this week’s crucial arguments rage in the court, the White House has finally gone on the offensive by embracing the whole Obamacare idea. “You want to call it Obamacare? That’s OK, because I do care”, the president told supporters at a fundraiser last week. Senior aide David Plouffe declared that the Republicans would “regret” starting the fight. There’s a Twitter campaign urging supporters to tweet #ilikeobamacare, and a Facebook page, with a timeline starting in 1912 and marking every effort to reform healthcare since.

The case that has it all

But nothing in this case is clear cut. If a majority of justices were to repeal one of the president’s major achievements, would it be a humiliating blow, severely damaging his chances of re-election in the fall? Or might it rebound on the right, by allowing the judicial branch to deprive the people of their consitutional right to directly overturn the law, at the ballot box, by voting Obama out of office.

This, then, is the battle that has it all. An issue that deeply divides the nation – and a debate that holds America’s most fundamental values up to the light. Above it all, the legitimacy and credibility of those who govern, and those who regulate the land. It’s not just 26 states versus the president. It’s the triumph of individualism versus the power of the federal government to mitigate the market: provision not just for those who pay, but for those who need it too.

A decision is expected in June. And you can bet on it: there won’t be a dry “Aye” in the House.

Felicity Spector writes about US politics for Channel 4 News