The Supreme Court, Public Perception & the Affordable Care Act


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As many are now, undoubtedly, aware the Supreme Court has committed to hear arguments pertaining to the constitutionality of the President’s Affordable Care Act. This comes along with two conflicting polls riding the coattails of the Court’s announcement. A Gallup poll of 1000 voters favored repeal of the law 47% to 42% while a CNN/ORC International Poll of 1,036 Americans found voters approved of the individual mandate 52% to 47% a change from 44% to 54% in June of this year.

Despite the inconsistencies evident in these polls, many questions will persist until June 2012 when the Court intends to render its decision. The two political sides are weighing in with evidence demanding the recusals of either Justice Kagan or Justice Thomas from the case. Pundits are speculating as to how the judges will vote, some of which are predictable given the ideological divide of the current Court. And strategies are being devised to spin which ever decision is handed down.

The recusal arguments center on potential biases and conflicts of interest on the parts of Elena Kagan and Clarence Thomas. Those calling for Kagan to recuse herself are based on emails obtained by Judicial Watch where she expressed  some excitement and approval about the passage of the law. In one message to Laurence Tribe, the Senior Counselor for Access to Justice in March 2010 Kagan states;

“I hear they have the votes Larry!! Simply amazing…”

And in another to Neal Katyal, Kagan’s top deputy at the time, she wrote;

We just got Snowe on health care,”

This is a reference to Republican Senator Olympia Snowe of Maine. The emails do not indicate she provided substantive advice on the bill. While they illustrate a potential personal approval of the bill are they enough to demand her recusal?

     In the case of Clarence Thomas there is a more salient argument for him to step aside. The justice’s wife, Virginia Thomas, until recently lobbied for several conservative activist organizations, including her own Liberty Central, promoting the repeal of the law from which she also drew a significant income. There are also valid questions about the Thomas’s financial ties to a Dallas real estate magnate, Harlan Crow, who has contributed heavily to numerous conservative causes including Liberty Central.  Crow was also involved in financing a pet project of Thomas’ to purchase and restore an old cannery outside Savannah, Georgia turning it into a museum and cultural center. These are two instances among others during the long relationship between the Thomases and Harlan Crow since their first meeting in the mid-1990’s that present a credible case for Justice Thomas’ recusal.

     When considering how the justices will vote on the constitutionality of the Affordable Care Act and specifically the individual mandate, it is fairly clear what direction many will take. However, two outliers are present, Justices Scalia and Kennedy. While Scalia is considered one of the Court’s most conservative judges his vote in this case is not a foregone conclusion.

     In the case Gonzalez v. Raich  2005 which dealt with California’s medical marijuana law, Scalia voted in favor of Commerce Clause when it was utilized in conjunction with the Necessary and Proper Clause. Scalia wrote;

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce.”

Kennedy, a traditional swing vote, for his part in this decision concurred with the majority’s opinion which relied heavily on Wickard v. Filburn 1942, a court decision pertaining to commercial versus personal use of farmed wheat and how the case impacted interstate commerce. The majority reasoned that;

More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U.S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market…In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity

     While Kennedy has voted against the use of the commerce clause in cases involving local criminal statutes this vote in support of Gonzalez v. Raich is more applicable to the current health care reform lawsuit. This lends credibility to speculation that he will vote in favor of the Affordable Care Act in this case.

     Whichever decision the Court returns with both political parties will design strategies to limit the impact for their side and reduce favor for the other. If the Court deems the entire bill constitutional it will be a victory for the Obama administration and Democrats. Republicans will continue their current calls to repeal it based on their assertion the reform represents government overreach. If the individual mandate is found to be unconstitutional the remainder of the bill could still go into effect but would be significantly weakened as a tool to reduce health care costs. The administration will tout the benefits of the remaining provisions such as the insurance marketplaces which will inject competition into markets that are served currently by only one or two insurers. Republicans would herald this finding as a triumph for small government proponents and as a Obama failure. The third, although unlikely, decision would be an invalidation of the entire bill if the mandate is unconstitutional. Most legislation includes a  severability clause which if a portion, or portions, of a law is deemed unconstitutional the remainder is allowed to stay in effect. Unfortunately, it appears the Affordable Care Act’s final version was passed without this clause. If the court did indeed take this line of reasoning it would leave little maneuverability room for the Obama except to graciously accept a defeat. The law’s journey through the appellate court process resulted in only one judge who found the entire bill unconstitutional due to the lack of the severability clause. Some, however, saw this ruling as an overreach by Judge Vinson and may prove to be an anomalous decision among the others.

     In the court of public opinion the Affordable Care Act may have to date faltered but this is more than likely due to voters’ incomprehension of the overall bill which is evident in polling of the bill’s individual components. The eventual Supreme Court decision may sway the public’s perception either way, more positive if the mandate is found to be within the bounds of congressional authority. The law itself will continue as a political cause célèbre throughout the 2012 elections but the Court’s decision will undoubtedly impact the outcome for the President, Democrats and Republicans. A ruling in favor of the law will validate the administration’s arguments, will legitimize the law’s role in reforming the health care system and will bring about an overall reassessment in public debate thereby forcing congressional Republicans to defend their continued opposition and reasoning behind the need to repeal the bill.

Additional Informative Links;

1) The Polling Contradiction
2) Kaiser Poll Finds Many Unaware of Health Reform Medicare Provisions
3) New Healthcare Reform Provisions Go Into Effect
4) Like Congress, Americans Split Over Health-Care Reform
5) Analyzing Judge Vinson’s Opinion Invalidating The ACA

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18 Comments to “The Supreme Court, Public Perception & the Affordable Care Act”

  1. Nice presentation of the posture of the case. It’s interesting to recall critical legal realism roughly a century ago and the economic and cultural similarities between the US then and now. It seems demeaning to pretend that a cultural context of approximately 50 million uninsured, the declining middle class, near 10% nominal unemployment and perhaps multiples of that underemployed or resigned to not look for work, and an obscene wealth disparity have no “legal” impact on the resolution of this issue. The Commerce Clause discourse is sometimes like a language with only vowel or only consont sounds and no common writing in either case.

  2. Scott> I appreciate the Court’s reference to past cases and precident. It seems essential to understanding the use of the commerce clause between then and now and how they relate to one another.
    And if I understood what you said correctly, yes just by the shear number of uninsured or underinsured Americans across the country is enough for the federal government to get involved to address the problem.

    • What if I don’t want health insurance? Why should I be forced against my will? The use of force by the federal government in this way is an unprecedented move, arrogating to themselves the police powers reserved by the Constitution to the states. Tread lightly, because once they can force you to buy health insurance, we’re only one step away from them telling us what we can eat, what cars we can drive, dictating our entire existences. If that’s what you’re looking for, Europe is calling your name. But please, leave America free, or it will cease to be America.

      • “What if I don’t want health insurance? Why should I be forced against my will? ”

        A little strong wording. It sounds like someone is coming to your door and manhandling you, shaking you down for that insurance money.

        “The use of force by the federal government in this way is an unprecedented move, ”

        Not really. I refer you to the Militia Acts of 1792 where males between the ages of 18-45 were required to join the militias and were then mandated to purchase virtually all their provisions and equipment.
        http://www.constitution.org/mil/mil_act_1792.htm Scroll down past Sec 10 and read through the paragraph beginning with “I. Be it enacted by the Senate and House”.
        While it did not apply to women or children under a certain age, it most certainly “forced” people into service and “forced” them to buy specific products of which they did not have much of a choice due to their requirement to serve in the militia.

        “Tread lightly, because once they can force you to buy health insurance, we’re only one step away from them telling us what we can eat, what cars we can drive, dictating our entire existences.”

        While treading a bit beyond the intent here I suppose it’s possible but we are required to do such things as educate our children in public schools or home-school them (which has to meet specific standards). There are a multitude of products that we are allowed to buy and use while others are deemed unsafe or have been banned. We are not allowed to use DDT any longer or lead paint in many situations. There are numerous safety regulations that products have to abide by to ensure the safety of children and the public in general. Leaded gasoline was phased out a number of years ago, making it no longer available for those who MAY want to buy it. Medications are limited to ONLY those deemed safe for consumption. We have food safety standards that reduce our choices to eat all those unsafe foods or inhibit those unsafe food production and preparation practices. Cities are required to provide safe drinking water and appropriate sanitation systems eliminating our choice to live in filth or reduces our choice to drink contaminated water. We have traffic laws that dictate how we can drive eliminating those personal choices to speed or drive recklessly. If we disregard those rules we are fined..or “OH NO!” even jailed. Damn, that government intervention!!

        In all those areas and more, where our personal choices have been reduced or eliminated have we entered into that dire situation you’re envisioning? There were many times when people said, “We’re one step away…” yet that final step into oblivion never materialized did it? When social security was being implemented people swore we were becoming a socialist nation. When Medicare and Medicaid were debated people swore it would destroy our health care system and of course drive us into socialism. When various air quality standards went into effect, industries like the auto industry produced dire warnings that their companies would fail. Lee Iacocca told Nixon that the auto industry would not be able to produce anymore vehicles past 1975. Did ANY of this happen? No, it didn’t. So why would we expect it would this time? Why would we expect those dire predictions to hold any more credibility this time around?

        The government isn’t telling you what insurance you have to buy or from who. It just wants you to have insurance. And it is even instituting a market driven exchange where people can shop around for insurance which effectively increases people’s choices. Oh and one thing to make note of is that the mandate was originally a Republican idea, first produced in the late 80’s by the Heritage Foundation and promoted by many members of the GOP right up until it became part of a Democratic bill.

        “If that’s what you’re looking for, Europe is calling your name.”

        This statement prompts me to ask, Have you ever been to Europe? Lived there? Spent any extended periods of time there? I suspect that if you have you wouldn’t have made that statement. It’s not any more restrictive than here. Sure there are differences but taken on a whole it’s not all that different as far as how people live out their lives.

      • I do think it inappropriate to dismiss Europe as “knowing nothing of freedom”. You didn’t say that, I’ve seen it elsewhere and seems close to your sentiments. It did after all produce the Magna Carta, people risking their lives to cross the Berlin Wall and Iron curtain. Europe has had its share of tyranny, but it also has a long history compared to the US, and I don’t think you could expect elsewise.

      • Bruce, very good points. It seems Europe is on the receiving end of some inaccurate stereotypes. They have their fair share of American stereotypes as well. But through travel and exposure to each others’ cultures is the best way to break through those misconceptions.

        Thank you for your thoughts.

  3. I tend to think we need a coherent policy on what level of medical care we guarantee. Now we have a mishmash of guaranteed emergency coverage, verterans with something like the British National Health, Senior with a Canadian system, and the rest with private insurance. In effect we have socialized medicine, in that at least the vast majority of American favor some form of decent care for all, but we seem reluctant to create a coherent and thought out system to do so. While I’m not convinced that Obamacare is even close to perfect, I think we owe the President something for forcing a debate and some kind of systematic approach.

    I thought it was inappropriate for former Speaker Pelosi to seem to blow off the constitutional question as meaningless though.

  4. Bruce> “…but we seem reluctant to create a coherent and thought out system to do so.”

    I wonder if this is due to a pervasive fear of change that was evident during the whole health care debate and on into this Supreme Court case.

    And no, the reform isn’t perfect but what system is. The others you mentioned before, the British national health care system and other European systems took a lot of time to hammer out the problems. In reality it’d be difficult to expect our first attempt would get it all correct right out of the gate. I view it as a good start. I have some high hopes for the insurance exchanges each state has to set up in that it should inject much needed competition into very narrow insurance markets.

    I don’t recall hearing about the Pelosi statement but I agree with you that the constitutionality of the mandate should be decided and each side should have their day in court.

    Thank you for your thoughful comments and I hope to hear your thoughts on future posts.

  5. This the exchange with the former speaker on constitutionality. It’s widely cited in right wing circles:

  6. I assume her point was that you can’t seriously expect ever issue that Congress will need to address over time to be specifically enumerated in the constitution written over 200 years ago. However, the quote can be used to make her sound indifferent to the Constitution.

    • I guess it does make for good fodder for the Right but it does sound like a ridiculous question given the Constitution’s intent to be a living document and the authors’ inability to predict the future health care access needs of Americans.

      I can see its’ effectiveness in applicable circles though.

  7. I’m not a fan of political polls.

    I do not believe that important decisions should be made based only on the prevailing political winds of the moment.

    I do believe that the constitutionality of the Affordable Care Act is a valid consideration of the Supreme Court.

    I do not believe that Supreme Court Justices should be recused from the case based only on the “D” or “R” attached to the President who appointed them.

    • Usually, I’m not a fan of political polls but as of late (2010 elections) I saw that they were quite accurate. This, I think, have given them a bit more credibility in my mind. Granted, public opinion does change with the winds, as do the polls so I’d say they a decent snapshot of opinion at the moment.

      “I do not believe that Supreme Court Justices should be recused from the case based only on the “D” or “R” ”

      I hope that isn’t what you inferred from that portion of this post. That wasn’t my intent nor the basis for the argument. What I was looking at was the weight of support against both Kagan and Thomas and how it seemed there was more cause for Thomas’ recusal due to apparent financial conflicts of interest.

  8. I am finding all of these polls somewhat irritating. We ask the opinions of people on The Affordable Care Act, without establishing whether they know, even sketchily, what it will do. Of what value is an “uninformed opinion”? The same goes for people expressing opinions on the validity of global climate change or evolution. We should have a system that distinguishes the opinions of those who understand the matter in question and those who do not.

    • Good points! In the case of the Affordable Care Act your argument is very clear. When people are asked if they are in favor of it the majority say, “No” but when asked about the individual components, the majority like it. Perhaps the pollsters need to include in each of their polls questions about the overall bill and questions about its components. Then at the end after going through the component parts, as again how people feel about the whole bill.

      While it may well be impossible to eliminate uninformed opinion from polls, maybe it’d be beneficial for candidates, political groups/parties to use them as a guide for more targeted education. As with health care reform they can focus their efforts on those areas where the public is misinformed.

      Thanks for your comments stephen!

  9. What about the federal mandate on Emergency Room care? While this doesn’t mandate that individuals actually use emergency room services, it does give a discrete option value for all American residents. And considering that an individual living in Connecticut has the option to show up at a New York emergency room, this value spans across state lines. Whether or not the individual participates, ER’s across the country have to structure themselves to account for this potential. Would this constitute participation in an interstate market, simply by being an American resident?

    Is there any precedent for option value being used to constitute participation in a market?

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