* S.C.O.T.U.S. - Sifting Controversial Opinions to Understand Scope of the Supreme Court of the United States’ hearings and subsequent decision on the constitutionality of the “mandate” provision of The Patient Protection and Affordable Care Act.

There are quite often reasons for a Supreme Court decision which seemingly don't have anything to do with the exact complaint in the case. In the case of the "mandated coverage" provision of the health care reform law, the Court will be looking at areas such as "states' rights," legislative powers to tax and to regulate commerce, and so forth.

Above all, the Court must look at precedents – decisions handed down in previous cases. According to David Orentlicher in an analysis for CNN, “70 years of judicial precedents provide strong grounds for upholding the law.” With titles to choke a business card printer, Orentlicher is the Samuel R. Rosen professor of law and co-director of the Hall Center for Law and Health at Indiana University's Robert H. McKinney School of Law. Emphasis, I suppose, should be on “law and health.”

In the meantime, the media are portraying the case before the Court as an examination of the constitutionality of the entire law.

Not so.

The Court is focusing on four key issues (LINK):

• Constitutionality of the individual mandate, which will require Americans to purchase health insurance while providing assistance to those who cannot afford it.
• Whether the individual mandate is a "tax," thereby limiting authority of the courts to immediately decide the mandate question.
• Whether other parts of the law can survive if the mandate is struck down.
• Federal vs. state conflict over expansion of the cooperative Medicaid program.

Although I never subscribed, I received an email from Senator Lindsey O. Graham (R-SC), which I'm sure has gone out to many South Carolinians with email. Its title: "Obamacare: A Trail of Broken Promises." What a load of, yep, propaganda, none of it applicable to the question before the High Court. Senator Graham, I am your constituent who demands citations for the claims you make. As for your claim that “Obamacare” is wrecking our economy, you had a hand in that yourself when you rubber-stamped President Bush’s expenditures. Regarding your complaint about the cost of Medicaid, God forbid if South Carolina concerns itself with the health of its poor. I remind you, sir, that you represent them, too.  And, while you claim “Obamacare” – a derisive term – has left “a trail of broken promises,” you fail to mention that many of its provisions don’t go into effect until 2014.

Some light is being shed on this issue. Kudos to CNN.com for taking an objective approach in its reporting, for pointing out the entire law is not under SCOTUS scrutiny and for featuring on its home page stories highlighting ways the health care law actually helps Americans. Here's a typical promo:

"Violet McManus, 3, suffers from seizures that stop her breathing. Until the health care reform law, lifetime caps threatened to eliminate her insurance. Now the Supreme Court is hearing a case that could throw out the law."

It is important, at this point, to explain why the “mandate” is necessary:

In order to force insurance companies to eliminate their “pre-existing conditions” restrictions, they will be required to charge the same fees for everyone ONLY if the public is REQUIRED to purchase insurance. As Orentlicher explains:

“Otherwise, many people would wait until they suffer an illness or injury to buy their policy. In other words, the individual mandate is simply designed to prevent freeloading that would cause the pre-existing conditions provision to fail, and the Constitution gives Congress the power to make sure its laws can be implemented effectively.”

Finally, Republican thinking seems to be, in my opinion, a dichotomy of delusion. "Obamacare" is a name-calling device of propaganda, which interpreted means "if you don't like Obama, you won't like this law." You can bet the right-wing are the first to complain about “freeloaders” not paying their medical bills causing expenses ultimately to be passed on to policyholders through higher premiums. This is exactly what the “mandate” is designed to prevent. But, instead of looking at this law objectively, they’d rather frame it in terms of a wrecked economy and so-called “death panels.” I dare say few have actually studied the law.

Before you go, stop for a minute and learn the makeup of the Supreme Court:

Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito comprise the Court’s conservative wing. Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor are considered its liberal wing. Elena Kagan is new enough to the Court that her leanings are not statistically known – she had to recuse herself from a large numbers of cases due to her former role as solicitor general – but she is expected to join the liberal wing. Anthony Kennedy, while conservative, is seen as the swing vote on the Court, often voting with the liberal wing. (Clarence Thomas votes the way Antonin Scalia votes – 92 percent of the time according to SCOTUSblog.com!)

With President Obama’s re-election possibly hanging in the balance, will the Supreme Court postpone its ruling until after the November election? If a ruling comes down in June, I cannot wait to read the opinions of the Court and of the individual justices to determine if they are based on “the merits of the case” or if this will be a repeat of what happened on December 12, 2000.dex.html?hpt=hp_t2


Leslie Parsley said...

Thanks BJ for this very timely piece. At this point I think it's kind of hard to tell on what the Supremes are going to actually rule and how. There's been so much speculation and every word or phrase any of them has uttered has been interpreted as a bad or hopeful sign. We'll just have to wait, albeit anxiously, for their ruling. Personally, due to the makeup of the court, I don't have a lot of hope. Too many of them have never let the Constitution stand in their way thus far.

Murr Brewster said...

Very lucid, as I expect from you. I'll be interested to see if all this ultimately ends up getting us some single-payer action. Either that, or we can all go cowboying into the sunset with our six-shooters, and the devil take the hindmost. Only that'll probably be me, notoriously slow and armed with only a dull pencil.