President Obama’s signature domestic achievement — and, with it, a big part of his political legacy — is now in the hands of the Supreme Court.
The nine justices on Monday will begin hearing three consecutive days of oral arguments about whether the healthcare law is unconstitutional. The landmark legal challenge threatens to overturn an historic legislative victory, raising the stakes once again in a debate that will help define Obama’s presidency.
The six-hour oral argument is the longest the court has heard in 45 years. And this is the first time in more than 75 years that the court is in a position to strike down a sitting president’s agenda while he runs for reelection.
“It’s just perfect, in terms of this being a first-term president’s signature legislation, and that it could be invalidated during a presidential election year,” said Carl Tobias, a law professor at the University of Richmond.
That last instance came in 1935 when, in President Franklin D. Roosevelt’s first term, the court considered the constitutionality of his National Recovery Act and struck it down.
Legal experts agree the healthcare case is already in the same league as the court’s most famous decisions, including rulings on abortion and civil rights. Some argue it’s more important than Bush v. Gore, the case that decided the 2000 presidential election, because of its sweeping implications for the role of government.
“It has the potential to fundamentally alter our concept of limited government,” said Robert Alt, a senior legal fellow at the Heritage Foundation.
The political implications are also enormous, for Obama as well as the conservative foes of his healthcare overhaul. A ruling striking down all or part of the law would seem like a gift to Mitt Romney, the likely Republican nominee, who has struggled to draw a sharp contrast with Obama on healthcare.
On the other hand, a legal victory for “Obamacare” could energize conservative voters who aren’t especially fired up about Romney. Rep. Allen West (R-Fla.), a Tea Party favorite, said a ruling in Obama’s favor would be a “big blow” to principles of individual liberty.
“I think that a lot of people would be really pissed off, put it that way,” West said when asked whether a decision upholding the mandate would energize the right.
Obama’s supporters, though, see the healthcare case as a potential test for the Tea Party, whose deep anger over the healthcare law was central to Republicans’ victories in 2010. If this court, with its usually conservative majority, upholds the mandate, the Tea Party’s rhetoric about reclaiming the Constitution might not sound quite as powerful.
“This case is not about liberals versus conservatives,” said Neera Tanden, president of the liberal Center for American Progress. “What’s at stake in this case is … two versions of conservatism.”
The Tea Party version would erode Congress’s well-established constitutional powers, she said, and it contradicts the traditionally conservative idea that courts should defer to Congress and the president on how best to regulate areas such as healthcare, which makes up roughly one-sixth of the U.S. economy. Tanden, who worked in the Obama administration during the yearlong healthcare debate, said overturning the law would be “a historic act of judicial activism.”
Even if the court’s ruling could rally the GOP base, she said, they’re still stuck with a candidate who supported the mandate in the past and signed one into law in Massachusetts.
“They could get riled up, but what are they going to get riled up about?” she said.
The healthcare lawsuit was filed by 26 state attorneys general and the National Federation of Independent Business (NFIB). It primarily challenges the law’s individual mandate — the provision requiring almost everyone to buy insurance.
The White House and its allies have some reason to be confident. They have a 2-1 record in federal appeals courts, and they’re heading into the Supreme Court armed with strong opinions in favor of the mandate from two deeply conservative judges.
Judge Laurence Silberman, a Reagan appointee with strong conservative credentials, offered a full-throated conservative defense of the mandate in a November decision siding with the Justice Department. The mandate’s critics “cannot find real support … in either the text of the Constitution or Supreme Court precedent,” Silberman wrote.
Silberman’s opinion has bolstered hopes on the left that one of the court’s conservative justices — perhaps traditional swing vote Anthony Kennedy — might come down in favor of the mandate.
But conservatives are generally dismissive of that prospect. Several legal experts who side with the states said they don’t expect to see anything but a 5-4 ruling, no matter which way it goes.
Democrats say a 5-4 decision against the mandate could be risky for Chief Justice John Roberts.
“If the decision is 5-4, basically Republican versus Democratic appointees on the court, I think a lot of people will look at that as they did at the Supreme Court decision to put President Bush in power,” Rep. Henry Waxman (D-Calif.) said. “I’m sure they have on their minds that they don’t want to come across as looking political. It would undermine the respect for the court, which I think the Bush v. Gore case did.”
The individual mandate has done well in lower courts. At the same time, however, the Justice Department has never articulated a clear limit to the powers it says Congress has. That has troubled even some judges who ultimately upheld the mandate, and it was at the core of a prominent lower-court decision that struck down the requirement.
The judge in that case asked whether, if the government can make people buy health insurance, it could also make them buy broccoli, as a healthy diet would do more to control healthcare costs than having insurance.
“I would call it something of the 800-pound gorilla,” the Heritage Foundation’s Alt said of the issue.
The states and NFIB argue that the insurance mandate is unconstitutional because it requires people to buy a product. Congress can regulate economic activity, they say, but can’t require it. The mandate is, in that sense, unprecedented — no other law requires taxpayers to make a purchase solely because they’re U.S. citizens.
The Justice Department says the “economic activity” in question isn’t whether people buy insurance, but whether they can pay for medical care that hospitals are legally required to provide. The mandate is a way of regulating how and whether people pay for their healthcare, according to the Obama administration.