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