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The Self Shelf: The Fickle Winds of March

Published: April 5, 2012
Section: Opinions


What many pundits and experts considered a clear decision in the health care Supreme Court Case has now become shrouded in fog after hearings on the law.

Before the oral arguments, there was a popular shared sentiment that the individual mandate would be upheld. The government’s case hinged on a question regarding whether the act of forcing someone to buy health insurance was justified under the Commerce Clause of the Constitution. By glancing cursorily at the relevant precedent for the Commerce Clause, it seemed clear that the mandate was constitutional.

The Roberts court, however, which has leaned conservative, tore into the government’s representative, Solicitor General Don Verilli, during the hearings on the law. After three days of interrogation, pundits began pondering the question of whether the court would strike down not only the individual mandate but also the entire law.

Suddenly, supporters of the individual mandate, who had previously welcomed the chance of having the Supreme Court render a definitive ruling on the matter, now, anticipating the law could be overturned, peremptorily defamed the Court for its political partisanship.
The Court will not publish its ruling until June 28 but now conservatives are the ones discussing an inevitable triumph regarding a repeal of the law. President Obama, meanwhile, has already prepared his supporters for disappointment. He has defended the constitutionality of the individual mandate, arguing any other finding by the Court would represent an increasing trend of politically motivated judicial activism. If the Court strikes down the law, then his re-election campaign will blast this argument to the American public.

If the Court struck down the individual mandate but left the rest of the law intact, it would force a heavily polarized congress to fix a law no longer financially solvent. Without the individual mandate, insurance companies would be forced to cover the increased costs of the very sick without the financial support of the young and healthy. The legislation prohibits denying people insurance based on preexisting health conditions.

Such a situation forces insurance companies either to raise prices drastically or suffer significant losses. Congress could resolve this but has proved itself increasingly unreliable in recent months—a trend I predict will continue.

The Court’s other option is to invalidate the entire law, a procedure which has not been used in 80 years. Undoubtedly, this would strengthen President Obama’s accusations of the increasing politicization of the court and could potentially undercut the court’s legitimacy going forward.

The Court could also uphold the mandate itself if liberal Justices Sotomayor, Ginsburg, Breyer and Kagan were joined by one of the more moderate conservatives—either Justices Roberts or Kennedy in a pragmatic decision.

None of these options is ideal for the Court, and we can likely expect a contentious 5-4 decision. There are many possible directions regarding the impacts from the court’s decision. We can only wait and speculate as to which way the winds of justice will blow when they rend asunder the fog that shrouds the constitutionality of the health care law.