The Health of Obamaand American Justice

For those who are tired of following the marathon of American presidential primaries, as of this Monday there is another option. There are three days of extensive presentations of oral arguments in the Supreme Court concerning President Obama’s health care reform law that was approved two years ago by a narrow margin in Congress. There will be six hours of strenuous arguments, both in favor of the law and against it. Since 1966, the Supreme Court has not dedicated so much time to one single issue. And, most illustrious readers, I will address the issue with its deserved ‘dryness.’ Stay awake!

The nine judges will rule on the law in June, when, it is supposed, the Republicans will already have selected their presidential candidate. Therefore, the way in which the judicial decision unfolds will be crucial in the campaign for the November elections. In an extreme situation, a great legislative victory for Obama could result in his electoral defeat. The bill’s victory in Congress in March of 2010 was fleeting: It contributed to the Democrats losing control of the House in the November elections that year. The politicization of the issue is inevitable and the decision will be historic, as it will echo beyond the election. In as much as it will involve questions about the nature of relations between the nation and citizens, the allocation of power between the federal government and the states and the authority of the Congress to take the lead in national issues.

This is not about judging the health care reform law’s individual attributes, such as the efficiency of its services or its economic costs; rather this is about its constitutionality. In basic terms, the three days of hearings will involve examining a legal challenge to the mandate of the 2010 law, which requires almost all consumers to have health care insurance through private or public programs (there will be subsidies for those who cannot pay). In a country that has individualism in its DNA, the visceral argument of the challenge is that this universal mandate is itself a threat to individual freedom. Revoking the health care reform bill has been converted into a conservative crusade.

In technical terms, the challenge, which comes from a vanguard of two dozen attorneys general from various states governed by Republicans, argues that the federal government exceeded its authority under the Commerce Clause of the Constitution by requiring that citizens buy a product: health insurance. This clause allows the federal government to regulate activities that affect national commercial activities. For opponents of the bill, not buying health insurance is an “inactivity,” not an “activity.” In the inevitable hyperboles, the argument goes so far as to warn that the next step will be for the government to decide how many times a citizen has to go the doctor each year or if he must eat broccoli to maintain his health (this green legume is always an object of derision, an injustice, as I really like it).

Defenders are already pointing out that the argument can work in the reverse. If the Supreme Court overturns the mandate for universal health care, it could set a precedent, for example, against the requirement to purchase car insurance. In the most basic terms, the defenders say that one cannot argue that the American health care system is not an interstate commerce. In the past 75 years, the Supreme Court has deferred to the authority of Congress in the socio-economic sphere. The defenders also argue that one cannot differentiate between the terms ‘action’ and ‘inaction’. The decision not to carry health insurance is a financial action but, for example, the inaction of not paying taxes is subject to government regulation and penalties.

The White House says it is confident of a judicial victory and does not have an alternative plan (according to a poll of an organization similar to A Ordem dos Advogados do Brasil,* 75 percent of Supreme Court experts said that they believe that most of the judges will conclude that obligatory medical insurance is constitutional). Ironically, in these last few years, the government failed in the test of “selling” health care reform to public opinion, and the issue propelled the tea party movement. In addition, it became a battle-horse for the Republicans and ammunition for the adversaries of Mitt Romney, who is the favorite for the Republican nomination and who, when he was governor of Massachusetts, implemented a state program with an individual mandate.

The Democrats never tire of pointing out that Romneycare inspired Obamacare, along with the proposals of the conservative Heritage Foundation, outlined to deliver a more efficient and less costly healthcare system, the design of which consumes almost 20 percent of American gross domestic product. Today Romney insists that his objective is to revoke Obamacare.

There is a fireworks-like display of lobbies and popular mobilization around this Supreme Court hearing. Public opinion is, to say the least, polarized (with Republicans overwhelmingly against the health reform as it was approved, and Democrats in favor). However, there are nuances. For example, the law prohibits insurers from discarding people on the basis of pre-existing medical conditions but rejects others in the individual mandate.

The court presided over by Judge John Roberts is conservative, with frequent five-to-four votes, but this does not mean that it is easy to predict how the court will rule in this case. Some of the conservative judges have already defended the Commerce Clause in similar decisions, although none of those cases were of this magnitude. The judges may ratify the law, reject it, accept part of it, or decide that it is too early to make a decision since the health reform plan will only be fully implemented in 2014.

The expectation is that the judges will not act in a partisan manner in a historic decision in the heat of the electoral campaign and against the backdrop of the Supreme Court decision in 2000, which assured the Republican victory of George Bush against Democrat Al Gore, after a controversial voting recount.

Better to believe in the autonomy of the Supreme Court. In the end, the independence of the judiciary is the guarantor for the health of the American democracy.

*Editor’s note: A Ordem dos Advogados do Brasil is the governing body of representatives of Brazilian lawyers and responsible for the regulation of the legal profession in Brazil.