October 3, 2011 in Nation/World

Weighty questions await Supreme Court justices

Immigration, health care among topics
David G. Savage Tribune Washington bureau

WASHINGTON – The Supreme Court today opens one of its most anticipated terms, in which the justices could strike down President Barack Obama’s health care law, empower local police to arrest illegal immigrants, and declare an end to affirmative action in colleges and universities.

The cases coming before the court “address some of the central issues facing the country,” said former Solicitor General Walter Dellinger. The clashes over health care and immigration “are not mere lawyers’ issues, but fundamental questions about how the country is governed.”

“By June of 2012, this may prove to be among the most momentous terms in recent decades,” said Elizabeth Wydra, chief counsel for the Constitutional Accountability Center in Washington.

The justices will decide over the next few months whether to hear the cases. If they do, rulings will be handed down by late June, just as the presidential campaign moves into high gear.

Most legal scholars predict the justices will not steer clear of the controversies. “The fact that the issues are politically charged and it is an election year won’t cause them a moment of hesitation,” said Harvard law professor Richard Lazarus.

The court now has five Republican appointees and four Democrats, and in major cases that divide along ideological lines, the conservative wing prevails most of the time.

The major issues:

Immigration. Republican Arizona Gov. Jan Brewer wants the court to rule that states and their police can question and arrest illegal immigrants. Lower court judges blocked Arizona’s law from taking effect, saying the federal government has exclusive control over immigration. But last week, a judge in Alabama cleared parts of a similar state law to go into effect there. This legal split means the high court will likely move soon to resolve this state-vs.-federal dispute over who can enforce immigration laws.

Affirmative action. In September, two white students who were turned down for admission by the University of Texas appealed to the high court, arguing that officials wrongly used race to favor minority applicants at the expense of whites and Asian-Americans. Their appeal urges the court to outlaw the use of race as an admissions factor in public universities, just as the court of Chief Justice John G. Roberts Jr. in a 5-4 decision barred public schools from assigning students based on race to achieve classroom diversity.

Health care. Republican officials from 26 states are urging the justices to rule that the Democrat-controlled Congress overstepped its power by regulating the health insurance market. They want the court to void the requirement that all Americans must have health coverage by 2014 or pay a tax penalty.

The health care case could be a defining moment for Roberts. Now beginning his seventh year as the court’s leader, Roberts comes from a conservative tradition that believes in limits on the powers of the federal government and a limited role for judges in deciding highly political questions. Those two principles are in conflict in the health care case.

On the one hand, a high court ruling upholding the insurance mandate would suggest the federal government could tell Americans what products they must buy. Florida Attorney General Pam Bondi, a Republican, said last week that striking down Washington’s requirement to buy health insurance would “define the boundaries of Congress’ power” and “defend Americans’ rights and freedoms.”

But a decision to strike down the law would be the court’s most dramatic veto of major national legislation since the justices struck down President Franklin D. Roosevelt’s first New Deal measures in 1935. Since then, generations of law students have been taught that in matters of economics and business, Congress makes the law, and the court stands aside.

If the court were to void the individual mandate, it would put health care reformers in a box. They could go back to Congress and seek a fix, but Republican lawmakers are not likely to vote for more taxes to make up for the loss of revenue from those who do not want to buy insurance.

From the other side, outraged Democrats and liberal activists would brand it conservative judicial activism if a narrow right-leaning majority were to throw out a national health care overhaul that was championed by the president and passed by the House and Senate.

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