Obamacare's Next Step: Supreme Court

A politically savvy maneuver or miscalculation?

The next stop for Obamacare will likely be the Supreme Court, where review and a decision on the law's constitutionality could occur smack in the middle of the 2012 presidential campaign. The Obama administration smoothed the way to the Supreme Court by letting a crucial procedural deadline pass for seeking a rehearing by the entire 11th Circuit Court of Appeals of its three judge panel ruling striking down the Obamacare individual mandate.

Unless Attorney General Eric Holder and his highly politicized Department of Justice had a case of collective amnesia and let the deadline slip by inadvertently, one has to assume it was a calculated move by the Obama administration to embroil the Supreme Court in a hot-potato issue during the 2012 presidential campaign.

Three U.S. appeals courts have weighed in so far on Obamacare. The 11th Circuit Court panel found that the requirement imposed on individuals to purchase health insurance from a private company for the entire duration of their lives is an unconstitutional overreach of Congress' enumerated legislative powers, including under the Commerce Clause, which "is unprecedented, lacks cognizable limits, and imperils our federalist structure." The 6th Circuit Court of Appeals upheld the individual mandate as “a valid exercise of legislative power by Congress under the Commerce Clause.” The 4th Circuit punted, saying that it was too early to address the issue on its merits since the mandate does not come into effect until at least 2014.

Splits among appeals courts on an issue of such constitutional significance normally impel the Supreme Court to take up the matter to bring judicial finality to the legal side of the controversy. The only question had been when the constitutional issue would finally reach the Supreme Court for decision, since the court had already declined a request for accelerated consideration that would have by-passed the appeals courts altogether. Now that the government is effectively accepting the 11th Circuit Court of Appeals' three-judge panel decision as the last word from that court in upholding the constitutional challenge brought by more than half of the states, the Supreme Court is more likely to take up the case during its 2011-12 term, which begins Monday. If the Court decides to hear arguments sometime this fall or winter, it could issue an opinion by June of 2012 as the presidential campaign season gets into full swing.

If the Obama administration had wanted to delay the case from reaching the Supreme Court until after the 2012 election, it could have filed the petition for an en banc re-hearing by the full 11th Circuit Court, which conceivably could have reversed the three judge panel if it decided to re-hear the case. True, such a reversal would have been unlikely since there is a minority of five judges appointed by Democrats on the 11-judge Circuit Court, and one of them has already ruled against the constitutionality of the individual mandate. Nevertheless, just making the request would have led to months of filings, which would have pushed the timing of any Supreme Court decision beyond the 2012 presidential election.

One might think that such delay would be in the Obama administration's political interests. After all, Obamacare remains unpopular. News coverage during the presidential campaign on whether it is or is not constitutional will remind voters of one of the main reasons they have misgivings about Barack Obama. The administration also hopes that, if Obama is re-elected, the current 5-4 conservative majority on the Supreme Court will disappear with the departure of just one of the conservative justices during the ensuing four years, which will make it easier to prevail against the constitutional challenges to Obamacare.

That said, the Obama administration still may see Obamacare as a useful part of its class warfare campaign. The narrative of  a conservative Supreme Court potentially striking down a social justice public policy initiative passed by Congress to presumably help millions of Americans obtain affordable health insurance fits into this narrative. It is one means of galvanizing the campaign's political base on the Left, which supports Obamacare. If the Supreme Court does decide to strike down Obamacare, in whole or in part, the administration will make replacing the "regressive, out-of-touch" conservative court majority a campaign issue.

On the other hand, if the Supreme Court upholds Obamacare, with Justice Anthony Kennedy voting in favor as the deciding swing vote, the Obama campaign will do a victory lap. It may well be counting on swaying Justice Kennedy, who believes in using international law as a reference point for interpreting the U.S. Constitution.  An argument they may use to sway Justice Kennedy is that Congress' policy determination to expand affordable health care brings the United States closer to other developed countries' recognition of the human rights dimension of universal health care. During her Senate confirmation hearings to become U.S. Solicitor General, Elena Kagan (now a justice on the Supreme Court herself) laid out this precise strategy regarding the use of foreign law to persuade wavering justices: "At least some members of the Court find foreign law relevant in at least some contexts. When this is the case, I think the Solicitor General’s office should offer reasonable foreign law arguments to attract these Justices’ support for the positions that the office is taking."

However, if the Obama administration is trying to turn Obamacare into a political wedge issue, its strategy may well backfire. It could have the counter-effect of further galvanizing the Republican base if Obamacare is ruled constitutional. Even if the Supreme Court simply hears oral arguments, but delays a decision until after the election, the Obama administration's well-publicized defense of the law will be seen by Obamacare's opponents as rubbing salt in the wound.

The Obama campaign may believe its vigorous defense of Obamacare will appeal to its own base, which Obama is trying to energize any way he can. However, while throwing red meat to the base on the Left would be a good strategy for primaries, if Obama were facing a serious challenge from the Left, it is not a wise course for the Obama administration to follow during the general election campaign. The independents Obama needs to reach are on the other side of the issue. A recent Rasmussen poll of likely independent voters, reported on September 19, 2011, shows that, by a margin of 53 to 32 percent, independents support the repeal of Obamacare. Overall, 56% of likely U.S. voters want Obamacare repealed.

Americans see their insurance premiums going up and the costs to the government of implementing Obamacare ballooning. Patients and their doctors are unhappy with the burdens imposed on the patient-doctor relationship by government meddling, which is symptomatic of the dissatisfaction that a record-high 81% of Americans have with the way the country is being governed, according to the most recent Gallup poll. Forty-nine percent of Americans believe the federal government has become so large and powerful that it poses an immediate threat to the rights and freedoms of ordinary citizens.

In short, if the Obama administration intends to inject the Supreme Court into the debate over Obamacare next year and to politicize any Supreme Court decision finding Obamacare unconstitutional, its political calculations may turn out to be as ill-advised as its policy prescriptions.