Well, as of yesterday — Day 2 (of 3) — in the oral arguments before the SCOTUS on the constitutionality of the Affordable Care Act, many commentators began raising dire warnings of this rather extremist, right-wing Court actually deeming the health care mandate unconstitutional. Some observations of my own:
1. Justice Kennedy was tough in his questioning on both sides, even though the media focused on his questioning of the Administration’s lawyer — who seemed not as well-prepared as you would otherwise anticipate.
2. Upholding the mandate is consistent with previous interpretations of Congress’ Commerce Clause power, as well as that of Article I, sec. 18, cl. 5, the Necessary and Proper Clause. In other words, even by Antonin Scalia’s own previous rhetoric, the mandate should be upheld.
3. Justice Kennedy and Chief Justice Roberts are the key votes — unquestionably. Initially, I thought that Scalia would also be a vote in favor of upholding the mandate. However, I believe that politics has trumped his preexisting constitutional rhetoric. I cannot say that I am totally surprised by this outcome if it comes to pass.
4. God forbid, if the mandate is struck down, there would be some likely positive outcome: if Congress cannot mandate that citizens purchase into private health insurance plans, then certainly — constitutionally — neither can Congress privatize either Social Security and Medicare. Indeed, the only realistic policy outcome (if Congress ever again ascends from the corporate cronyism inundating approximately 60% of its members), is single-payer health care, i.e., Medicare for all.
5. The striking down of the mandate — or the entire ACA — could serve to further energize an electorate who generally supports its principles, especially the policy of coverage for preexisting illnesses, and imposition of cost controls. It would further also solidify — once again — the perception of rabid partisanship over principle within the SCOTUS. The Second Coming of the Four Horsemen of Reaction (plus J. Kennedy) will again be etched into the annals, alongside the tragedies of Bush v. Gore, Citizens United, and the invalidation of the ACA. Now, the question would fall as to whether or not such perception would generate sufficient political and public reaction as to politically force the Court’s hand into the future. The answer — no. We are dealing with a reactionary Court with individuals seated for life and unlikely to suffer through impeachment (although Justice Thomas is undoubtedly ripe for impeachment charges). The current Administration lacks the willpower; the Congress is hopelessly inept and driven by partisan forces resistant to a strict examination of the outside influences on Justices such as Thomas, Scalia and Alito (can you say Koch Bros.?); and — despite the arrival of the Occupy Movement — the American public likely does not have the stamina to push any real change at such a level.
That’s all for me on this rather protracted squib.