WASHINGTON – Supreme Court justices appear poised to thrust themselves and the Obama administration’s signature health care law smack into the middle of the 2012 election.
As early as today, following a closed-door session last week, the justices will reveal whether they will consider one or more challenges to the law. If they do, as every court watcher expects, the program that opponents call “Obamacare” will dominate both the legal and political docket throughout the election year.
“This decision could come right in the middle of everything,” said Dennis Goldford, a professor of politics and international relations at Drake University in Des Moines, Iowa.
By mid-April, assuming the challenge to the law is considered, the court is likely to hear oral arguments. Public and political attention will spike through the spring. A ruling is likely to come out around the last week of June.
By then, it should be clear which Republican will run against President Barack Obama, and any of the GOP candidates is expected to make repealing the 2010 health care law a centerpiece of the campaign.
After all, University of California at San Diego political scientist Gary Jacobson noted, the 2009-’10 health care debate “was a titanic political struggle that polarized the nation. It helped inspire the (conservative grass-roots) tea party. And it’s had a profound effect on people’s views of Obama.”
Impact of decision
If the Supreme Court upholds the individual mandate, which requires nearly everyone to buy coverage by 2014, “it will give the Obama campaign something to trumpet, but it could help mobilize the opponents,” Goldford said.
Views of the health care law hardened long ago, especially in the political arena. An October survey by the Kaiser Family Foundation found that 51 percent of U.S. residents surveyed have an unfavorable view of the law, while 34 percent have a favorable view.
Many Democrats won’t back down from touting the law. Republicans won’t stop criticizing it.
“I’ve said time and time again: Obamacare is bad news,” former Massachusetts Gov. Mitt Romney said at a recent debate.
Texas Gov. Rick Perry calls the health care law a job-killer. Texas Rep. Ron Paul finds that because of the law, “already insurance premiums are going up.” Many Democrats, in turn, embrace it.
Court could become a campaign issue
Add to that another classic clash: The court’s ruling will rivet attention to the president’s power of appointing Supreme Court justices. The court itself could become a campaign issue, depending on the ruling’s scope. Expect to hear the phrase “unelected judges” a lot.
The one thing Democrats and Republicans agree on is they want a Supreme Court ruling. They have every reason to expect one.
Six separate petitions concerning the health care law are before the court and were scheduled for private consideration at a Thursday conference. It takes at least four justices to agree in private for a case to be granted a full hearing.
The petitions reflect not only high-level interest in the law, but also the conflicting interpretations provided by lower appellate courts. The Supreme Court often agrees to hear cases to resolve these so-called “circuit splits.”
Solicitor General Donald B. Verrilli Jr. argued in a legal brief that “review is especially appropriate” because the split circuits differ over a central piece of a law “to address a matter of grave national importance.”
The 6th U.S. Circuit Court of Appeals, covering Ohio and other Midwestern states, upheld the law formally called the Affordable Care Act. The 11th U.S. Circuit Court of Appeals, covering Florida and other Southern states, upheld most of the law but struck down the individual mandate.
The politically controversial mandate requires an individual to either purchase insurance or pay a fee.
“The (law) is without precedent both in its coercive impositions on the states and in its effort to force individuals to engage in commerce so that the federal government may regulate them,” attorney Paul Clement wrote for Florida and the other states in their challenge to the law.
Formerly the Bush administration’s highly regarded solicitor general, Clement is a good bet to be tapped as the lead attorney for the health care law’s opponents. A final decision, though, will turn in part on exactly which petition is accepted. Some petitions, which are probably a long shot, call for the entire law to be struck down, while others focus on the individual mandate.
Almost any ruling is likely to trigger a fresh round of political warfare. Republicans want the mandate out. Democrats don’t.
Democrats plan to stress the benefits already in place – 26 major provisions went into effect last year and 17 more have been implemented so far this year. Most insurers can no longer deny coverage to children because of pre-existing conditions and must allow dependent children up to age 26 to remain on parents’ policies.
Democrats also have localized the health care issue. They have fact sheets describing how many children in a state are helped. Or how many community health centers would get funding under the law.
Odds are the court will give everyone plenty to debate.
In a sign of massively complex rulings to come, the 11th Circuit’s judges needed 304 pages to spell out their decision. On Tuesday, in the most recent ruling, the D.C. Circuit Court of Appeals used only 103 pages to uphold the law.
“Since so much has already been written by our sister circuits about the issues presented by this case – which will almost surely be decided by the Supreme Court – we shall be sparing in adding to the production of paper,” Judge Laurence Silberman wrote for D.C. Circuit.