By Sam Baker and Elise Viebeck - 06/25/12 09:00 AM EDT
Anxious lawmakers are on edge awaiting the Supreme Court’s life-or-death decision on the future of President Obama’s healthcare law.
The excruciating wait is nearly over, for the high court is poised to release the most anticipated ruling since Bush v. Gore.
The tension on Capitol Hill is palpable on both sides of the aisle.
Lawmakers, with their type-A personalities, are in the unusual and uncomfortable position of being powerless to influence the dramatic events.
There is no lobbying to be done, no communications strategy to deploy — no way to shape the justices’ thinking or turn the outcome.
Some lawmakers prepare, then prepare some more.
“We’re keeping a close eye on it. Absolutely. We’re having a war room every day — every Monday and Thursday,” Rep. Diana DeGette (D-Colo.) said.
Others assume a zen tranquility amid the storm of predictions and anticipation.
“Nothing I can do about it; it’ll come when it comes,” Rep. Allen West (R-Fla.) said. “It’s kind of like waiting to go into a firefight,” the former Army officer added. “You don’t want to be too anxious to do it.”
Lawmakers, lawyers and pundits have braced for the decision every day the court has been in session. But as the days tick down, they brace a little harder. They’re bracing intensely now because this week is the last available for the justices to deliver their verdict. Seventy thousand people watched live reporting of opinions on SCOTUSBlog last Thursday, thinking a ruling might come.
The case has massive implications. It will shake the presidential race in ways almost impossible to predict. It will define Obama’s legacy and that of Supreme Court Chief Justice John Roberts. And it will shape the future of the healthcare system.
It is, above all, a landmark decision on the scope of Congress’s power under the Constitution.
“It’s huge,” said Rep. Phil Roe (R-Tenn.), a doctor and critic of the healthcare law.
The healthcare ruling will rival some of the high court’s most important decisions in history, he said, alongside cases on civil rights and abortion.
“I think it’s one of the biggest decisions the court has made in the last 50, 60 years — Brown v. Board of Education, Roe v. Wade, the 2000 presidential election; those are all big decisions, and this is one of them.”
Twenty-six states and the National Federation of Independent Business filed the healthcare challenge. They claim that the law’s individual mandate, which requires most taxpayers to buy insurance or pay a penalty, is unconstitutional.
If the court agrees, it must also decide whether to strike down the entire statute or only part of the law.
Political observers new to the court’s protocols have been surprised to find the third branch of the federal government — unlike the first and second — never leaks.
Even the most powerful legislators have no inside track. They must watch cable TV or keep hitting “refresh” on the court’s website, like everyone else.
The court doesn’t even announce when each decision will come down, though it traditionally holds its biggest cases until the end of the term.
All anyone can do is try to be ready when the moment arrives. “We were ready today,” Sen. Dean HellerDean HellerSenate lays groundwork for spending deal GOP pressures Kerry on Russia's use of Iranian airbase Overnight Finance: Senators struggle with spending bill | Obama lifting Myanmar sanctions | Dems turn up heat on Wells Fargo | Panel votes to exempt Olympic medals from taxes MORE (R-Nev.) said last Thursday, laughing.
Trying to prepare is a big undertaking.
Unlike other important cases, there are many more than two possible outcomes in the healthcare case.
Families USA, the left-leaning advocacy group, already has eight statements pre-written, and is nevertheless crossing its fingers and hoping these will cover any possible outcome and thus enable the group to respond as soon as the decision comes down.
Richard Mourdock, the Republican Senate candidate in Indiana, was tripped up by his own preparation last week. His campaign accidentally uploaded three pre-recorded YouTube videos reacting to various outcomes.
Sen. Lindsey GrahamLindsey GrahamOvernight Finance: McConnell offers 'clean' funding bill | Dems pan proposal | Flint aid, internet measure not included | More heat for Wells Fargo | New concerns on investor visas Senators buck spending bill over Export-Import Bank Pelosi pans latest GOP stopgap spending offer MORE (R-S.C.) said his colleagues are curious, but under control.
“The Supreme Court decision will be an historic decision, but we’re not going to just go crazy,” Graham said.
The last public glimpse into the justices’ thinking came in March, at the end of a marathon three days of oral arguments.
Their typical practice is to meet in a private conference following oral arguments, discuss the case in order of seniority, then take an initial vote on how to rule.
That means the nine justices, and their clerks, have probably known for months what the decision is — leaving some members of Congress feeling, if not quite at peace, then resigned to the healthcare law’s fate.
“You don’t pray to alter things that have already happened,” Rep. Jerrold Nadler (D-N.Y.) said.
The court divided its oral arguments into four questions: whether it may make a ruling now, before the individual mandate has taken effect; whether the mandate is constitutional; whether the rest of the law can stand if the mandate is unconstitutional; and whether the law’s Medicaid expansion is constitutional.
It’s unclear therefore whether the Big Decision will actually be one decision or separate rulings on each of the four questions. Either way, the complexity and historical significance of the case means there will probably be several concurring and dissenting opinions to dissect.
Beyond the pressures of having a press release ready, the range of possible outcomes presents many policy and political ramifications.
Sen. Tom HarkinTom HarkinGrassley challenger no stranger to defying odds Clinton ally stands between Sanders and chairmanship dream Do candidates care about our health or just how much it costs? MORE (D-Iowa), who chairs the Health, Education, Labor and Pensions Committee, said his efforts have been focused on preparing a policy response.
“We’re tracking it, but we’ve been methodically working on our end … so I think we’re pretty well prepared,” he said.
“It’s not something [for] one hour after they make the decision, but within a day we’ll have figured out what parts we need to fix — if they don’t uphold the whole bill.
We’re still hopeful they’ll find that it’s constitutional.”
Democrats have maintained a determined air of confidence even as the conventional wisdom among court watchers has shifted.
House Minority Leader Nancy Pelosi (D-Calif.) has predicted the law will be upheld in a 6-3 decision.
Many observers, including some of the mandate’s critics, thought the law was on solid ground earlier this year. But oral arguments appeared to go abysmally for the White House.
The court’s customary swing vote, Justice Anthony Kennedy, made it clear immediately that he was deeply skeptical of the mandate, and even the more liberal justices were unsatisfied with the answers offered by Solicitor General Donald Verrilli, who argued the case on behalf of the Obama administration.
“I don’t believe there are any surprises,” Rep. Gerry ConnollyGerry ConnollyOvernight Cybersecurity: Fallout from Yahoo's massive breach | House panel holds Clinton IT aide in contempt | Privacy groups want WhatsApp probe Oversight Committee votes to hold Clinton IT aide in contempt of Congress A clear signal on Georgia’s future MORE (D-Va.) said. “I believe the Supreme Court made up its mind the day we passed the bill. I fully expect a party-line partisan vote and I have no illusions about that.”
Whatever the result, it is coming soon, perhaps as early as Monday.