The sense of anticipation before Thursday's ruling was immense, even oppressive.
Back in late March, the six men and three women who are the Supreme Court held nearly six hours of oral arguments over three days, the longest time allocated to a single issue in more than ۴۵ years.
Over the following ۱۳ weeks media pundits bloviated and speculated, concluding for the most part that the law would, at least in part, be struck down. Surely, they intoned, the mostly conservative Justice Anthony Kennedy – the closest this riven court comes to a swing vote – would help gut the law, pointing to his brutal interrogation of the government’s case. And if its central pay provision, the so - called ‘individual mandate, ’ were invalidated, might it not fatally weaken “Obamacare’s” remaining measures? As if the outcome were a foregone conclusion, discussion turned to how such a setback would affect the President’s chances for re - election.
So high were the stakes, and so relentless the second guessing, that perhaps we shouldn’t have been surprised when the drama did not – even after the guillotine had reportedly dropped – unfold according to script.
TOPSHOTS Demonstrators in favor of US President Barack Obama ' s signature healthcare legislation await a decision by the US Supreme Court on the constitutionality of the Affordable Healthcare Act, outside the Supreme Court in Washington, DC, June ۲۸,۲۰۱۲
(AFP Photo / Saul Loeb)
Chief Justice John Roberts began reading the ruling at ۱۰:۰۶ a. m., and within minutes it seemed clear that the court had struck down the law, dealing Obama a terrible blow. Roberts said that the core mandate – which requires almost every American, from ۲۰۱۴, to purchase insurance or face a fine – was unconstitutional under the Commerce Clause, a line in the US constitution that gives Congress the power to regulate interstate trade. The Obama administration had invoked the clause as their main argument in defending the law’s constitutionality.
The individual mandate “does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, ” the decision read. “The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to ‘regulate Commerce’. ”
BOOM!! America’s two main cable news channels - - CNN and Fox – hurled their thunder bolts: ‘INDIVIDUAL MANDATE STRUCK DOWN. ’ People across America cheered or groaned depending on their political persuasion. Obama, watching the two channels on a split screen, surely thought his signature domestic policy achievement had been shot to pieces. Republicans fired jubilant messages into the Twittersphere, gloating triumphantly.
But Roberts hadn’t finished talking.
The government had posited a ‘plan B’ argument, just in case. If the mandate was not deemed constitutional under the Commerce Clause, the Obama team reasoned, perhaps the justices would uphold it under Congress’s taxing authority. The fine, in other words, would be considered legitimate as a “tax” rather than a penalty.
he Justices of the US Supreme Court: Front row(L - R): Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Justice Anthony M. Kennedy and Ruth Bader Ginsburg. Back Row(L - R): Sonia Sotomayor, Stephen Breyer, Samuel Alito Jr., Elena Kagan.
(AFP Photo / Tim Sloan)
Convoluted, yes, but this was the logic that saved the law. And it was ultra - conservative Roberts, a favorite bete noire of liberals, who joined the Court’s four liberal - leaning members to deliver the crucial swing vote, not Kennedy. The decision was all the more astounding since – in order to have jurisdiction to rule on the matter at all – the justices had, previously, unanimously decided that it wasn’t a “tax, ” otherwise they would have had to defer a ruling on the case until after the “tax” had been collected in ۲۰۱۵, under the arcane Anti - Injunction Act(AIA).
OK, best to let lawyer Christopher Schneider explain:
“Although this decision may appear to contradict the court’s holding that the penalty is not a tax for purposes of the AIA, the two rulings are consistent. As the court explained, the AIA and ACA are both statutes enacted by Congress. Congress has the power to decide whether one statue applies to another; therefore, the ‘penalty’ label controls for purposes of the AIA. But Congress does not have the power to decide whether and how the Constitution applies to a statute; that is the court’s job. Accordingly, the court looks beyond Congress’s labels to determine whether the ‘penalty is a ‘tax’ for constitutional purposes. The court concluded that the individual mandate is a permissible tax. ”
Bottom line: the Supreme Court upheld the central plank of Obama’s sweeping health care reforms. Despite the administration’s worst fears, the only restriction was on expanding coverage to ۱۶ million more poor Americans through the federal Medicaid program. The court upheld that clause too, but ordered the government to withdraw its threat to withhold federal funding from states that do not comply.
One result of the ruling – whether by design or not – is that the conservative - majority US Supreme Court’s reputation as an independent final arbiter is restored.
The contested ۲۰۰۰ " Bush v Gore " decision that handed the presidency to George W. Bush rather than Al Gore was a bitter pill for liberals to swallow. A decade later, the Court was again openly charged with bias when it ruled – in a landmark decision known as ‘Citizens United’ – that companies could pour unlimited amounts of money into political campaigns. The court’s five conservatives(chosen by Republican presidents) united to defeat its four liberals(chosen by Democratic presidents) in what was widely decried as a politically - motivated vote. Partly as a result, a poll in early June of this year showed that only one in eight Americans believed the court would rule on Obama ' s health law based solely on legal arguments.
Republican U. S. Presidential candidate Mitt Romney speaks in response to the U. S. Supreme Court ruling on the Affordable Healthcare Act with the U. S. Capitol in the background, June ۲۸,۲۰۱۲ in Washington, DC.
(AFP Photo / Getty / Alex Wong)
In one fell swoop, Roberts has disarmed this skepticism. Some say the ۵۷ - year - old, who could remain for decades in what is arguably the most powerful seat in the land, had an eye on his legacy. The history - conscious chief justice, they say, was well aware of the damage another “Citizens United” would inflict on his – and his court’s – credibility.
Others argue that he has not changed his spots. Indeed, many conservatives quietly declared victory last week because, in finding “Obamacare” unconstitutional under the Commerce Clause, the court invalidated what many – on the left and on the right - - described as a powerful tool of liberal activism. The individual mandate was a battle lost, but taking the Commerce Clause out of play was a major strategic victory.
But whatever historians say in the future, the perception of the Supreme Court is, for now, that of a fairer, less political institution.
How will all this play out in November? Nobody knows. Enraged Republicans are even more desperate to get Mitt Romney – who has vowed to see the law repealed – into the White House. But that campaign promise, were he to gain office, could prove politically perilous as much of the law is popular and health - care industry is already pressing ahead with the reforms. Even Republican - leaning states - - banking on a Romney win – that are stubbornly refusing to set up the required insurance “exchanges” until after the November ۶ are wavering, worried that the federal government may step in and run the exchanges in their place.
Unrepentant, the pundit class has now taken to arguing over whether the court’s bombshell will favor the incumbent or his challenger. In truth, neither clearly stands to benefit from harping on health care. Nothing is more likely to get conservative Republicans off their couches quicker in November than Obama trumpeting what the right sees as the key plank in his evil, Big Government, socialist takeover. Romney may whip up Tea Party fervor, but there are good reasons for him to exercise restraint, starting with the fact that the health reforms he signed into state law as governor of Massachusetts included an individual mandate that was a template for " Obamacare. " Not exactly a record he wants to run on.
Beyond election year tactics, however, this historic decision keeps the dream alive for Obama, and he must know it. A second term would help him ensure that the reform sticks, and bolster his self-avowed ambition to be, like Lincoln, the Roosevelts or Johnson, a transformative president. Polls say the outcome is a statistical tossup. But one thing is certain: if John Robert's Supreme Court had struck down this law, Obama's legacy would have been forever tarnished.
The sense of anticipation before Thursday's ruling was immense, even oppressive.