Legal Challenges

Dems fear Supreme Court will rule against Obama on healthcare reform

Democrats on Capitol Hill are worried that the Supreme Court will rule against President Obama’s healthcare reform law. 

Over the last couple weeks, congressional Democrats have told The Hill that the law faces danger in the hands of the Supreme Court, which The New York Times editorial page recently labeled the most conservative high court since the 1950s.

While the lawmakers are not second-guessing the administration’s legal strategy, some are clearly bracing for defeat.

“Of course I’m concerned,” said Sen. Sherrod Brown (D-Ohio). The justices “decide for insurance companies, they decide for oil companies, they decide for the wealthy too often.”

The pessimism is fueled in part by the John Roberts court’s decision in the 2010 Citizens United case on corporate spending in elections, which Brown has called the “worst” in his memory.

{mosads}The comments underscore the gamble the White House took when it opted not to seek to delay the high court’s review until after the 2012 election. That decision leaves the fate of Democrats’ signature domestic achievement in the hands of a right-leaning court that has consistently ruled against liberals on everything from campaign finance to the District of Columbia’s gun ban to Bush v. Gore.

The White House and House Democratic leaders were on message on Monday, refusing to display any doubt that they will prevail.

“We know the Affordable Care Act is constitutional,” White House communications director Dan Pfeiffer said in a statement Monday, “and are confident the Supreme Court will agree.”

House Minority Leader Nancy Pelosi (D-Calif.) said, “We are confident that the Supreme Court will find the law constitutional.”

However, other supporters of the law are not so sure. 

Earlier this month, Sen. Bernie Sanders (I-Vt.) initially declined to comment, but when pressed on the conservative nature of the court, said, “We all know [the justices] are going to put their ideologies aside and do the right thing. Right?”

He then paused and said with a laugh, “Maybe we don’t know.”

The Supreme Court’s announcement on Monday that it will hear challenges to the law’s individual mandate and Medicaid expansion all but assures a ruling right before the 2012 election on the Democrats’ signature domestic achievement. The administration in September turned down its last chance to delay a ruling when it declined to request a full appeals court review first.

Sen. Tom Carper (D-Del.) said he has no problem with the White House wanting a decision as soon as possible.

“We need certainty,” Carper said.

“Politically, there are arguments both ways,” Sen. Richard Blumenthal (D-Conn.) told The Hill. “But dispelling uncertainty and seeking to resolve important questions of constitutional law when there are very grave practical implications is certainly the responsible course to take.”

Sen. Ben Nelson (D-Neb.), who is up for reelection, said trying to delay the high court’s review “just would have been political, and I think what they’re trying to do is get this decided on its merits. And I think that’s appropriate. “I really don’t have an opinion on how the court will treat this case,” Nelson said. “It’ll be whatever it is.”

Nelson supported healthcare reform in 2010, and that vote is expected to hamper his bid for a third term. 

Sen. Sheldon Whitehouse (D-R.I.), a former state attorney general who sits on the Judiciary Committee, said that the individual mandate might very well fall, but that the law’s defenders have gotten “overexcited” about it. 

The rest of the law will most likely survive, he said, preserving popular provisions that should help Democrats in the 2012 elections.

“So the mandate falls? Big deal,” Whitehouse said. “I think a family able to keep their sick kids on insurance even though they have pre-existing conditions, kids out of college able to stay on their parents’ policies while they look for that first job with healthcare — things like that are what will stick. Irrespective of what the Supreme Court says, that’s the things people really care about and are counting on.”

Democrats have vowed to come up with a remedy if the individual mandate is ruled unconstitutional. However, healthcare experts say such a fix will not be easy, noting that the mandate helps lower health premiums. 

A health insurance law without a mandate would likely make it too costly for insurers to abide by the law’s requirements to cover all sick people without charging them more because it would attract mostly high-risk people.

Congressional Democrats, many of whom have railed against the Roberts court, released statements on Monday that predicted victory.

House Ways and Means Committee ranking member Sandy Levin (D-Mich.) said he has “every reason” to believe the court will uphold the law. 

Rep. Pete Stark (Calif.), the top Democrat on the Ways and Means Health panel, said, “I’m looking forward to a Supreme Court ruling that will force Republicans to join Democrats in governing instead of continuing their political grandstanding.”

Republicans are just as certain they’ll prevail.

The law’s individual mandate “is both unpopular and unconstitutional,” Ways and Means Committee Chairman Dave Camp (R-Mich.) and Health subcommittee Chairman Wally Herger (R-Calif.) said in a joint statement, “and [we are] pleased that the court is acting swiftly to address the issues in this case.”

— Bob Cusack contributed to this article.

Tags Bernie Sanders Richard Blumenthal Sheldon Whitehouse Sherrod Brown Tom Carper
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