The five members of the conservative bloc on the United States Supreme Court seem ready to strike down the heart of Affordable Health Care, the individual mandate or requirement that every adult must purchase health care insurance.
They seem to agree that if someone were about to enter the ER, it would be legal to require that person to buy health care insurance. Of course, the premium would be sky high. The justices object to requiring someone to purchase coverage when it is not needed.
It seems to be a matter of timing. But they are not willing to look at what happens when someone goes into the ER without insurance. In many instances, the people who have already purchased their own insurance will be forced to bear the cost of taking care of the untreated. That drives up their premiums. At the moment, hospitals using some public money must care for the uncovered. But as health care costs continue to rise, it is only a matter of time before that requirement will be dropped.
Justice Scalia seemed to be enthusiastically helping those who challenged the law, and he made it clear that ripping out the heart of reform should bring down the whole law.
Yet he once wrote that government has the power to regulate medical marijuana and anything else that appears to be interstate activities, even it they do not effect interstate commerce as in the case of the fellow who grows weed for his personal medical use.
This smacks of politics, not jurisprudence.
Justice Kennedy was less transparent, but his comments revealed a greater concern for political theory than applying established laws and accepted definitions of interstate commerce. Though many pages of the law have nothing to do with the individual mandate, he seemed to be considering striking down the entire law because he was concerned that some regulations would increase costs for insurance companies.
Here, the insurance corporations, seem to be more the object of his attentions that living, breathing people. He had previously given corporations control over elections in the Citizens United decision. Now he is deeply concerned about the profits of the health insurance companies.
Powell gave away the game when he mused over the law changing the individual's relationship to government. This comes down to policy and political theory, not matters of law or the powers that can be exercised by the Congress. Had Congress not established Social SEcurity in 1935, the argument would make a tiny bit more sense. But it would be a political argument.
The rightist judges appear again as "political actors wearing black robes." It is Bush v. Gore and Citizens United all over again. The court is becoming less a court of law and more a second upper chamber of the national legislature.
Should Affordable Care be struck down, it could help Obama's reelection. It removes a reason for the uninformed to vote against him. It will also anger activists enough to activate them as campaign workers.
Even if the court does not strike down what the conservatives call "ObamaCare," the Democrats should be making these points.
1. The act added ten more years to the life of Medicare without raising costs or trimming benefits. If the savings in Affordable Care ACt are slashed, Medicare will again be in deep trouble. Moreover, $600 billion will be added to the debt over ten years.
2. The act helped seniors by reducing the size of the prescriptions doughnut hole.
3. There are no "death panels." What people said are death panels were actually advisory panels established by an amendment offered by Republican Senator Grassley. The Iowa SEnator then turned around and denounced his own amendment at the Iowa State fair, fueling all the dishonest talk about death panels.
4. There is no language in the act that provides for the funding of abortions. That claim was a deliberate lie that proved very effective in the 2010 elections.
5. The opponents of the act want to restore all the problems and abuses in the health care system that existed before Obama took office.