The problem for the supporters of the President’s health care reform is the incongruence between what must be argued to defend it in the courtroom and what needs to be said to sell it in the political realm. Opponents on the right maintain the same argument everywhere: the government is getting too big; this law encroaches on the rights of the people to decide whether or not they want to buy health insurance. The rhetoric used in political speeches by Republicans works just as well in the Supreme Court: “If the government can do this, what can it not do?” Such is the nature of the argument for limited government. It can be used both to rally the masses and as a legitimate challenge in court. The liberal argument is powerful if we’re talking about achieving social justice and equality, but this goal carries little weight in the legal realm. What matters in court are the government’s actions, not their purpose. While the moral imperative to provide affordable healthcare for everyone in the United States is a strong political goal, it is rendered useless when defending the constitutionality of the law in court.
The disparity between the left’s political and legal rhetoric posed a huge challenge for the Obama Administration as it defended itself in court. A prominent example of this occurred on the second day of oral arguments for Department of Health and Human Services v. Florida, when the topic of fines and taxes were discussed. The individual mandate at the heart of the Affordable Care Act requires citizens to either get some form of health coverage or pay a fine of about $700 per year. Solicitor General Verrilli argued that this fine should be considered an excise tax, thereby permissible under the taxing power of the Federal Government. Justice Scalia responded with a comment that highlights all too well the incompatibility of the petitioner’s argument with what is said outside the courtroom. “The President said it wasn’t a tax, didn’t he?” Verrilli then went on to say that what matters is not what the President has said, but what powers Congress is actually exercising. “The President said it wasn’t a tax increase because it ought to be understood as an incentive to get people to have insurance. I don’t think it’s fair to infer from that anything about whether that is an exercise of the tax power or not.” It would be political suicide, especially in today’s economic and political climate, to call the fine a tax, but constitutionally it must be considered a tax.
Despite being inseparable, the political realm and the legal realm have to be addressed in completely different ways. Although “Obamacare,” the term originally coined by opponents of the health care bill, has been widely adopted as the non-partisan nickname for the President’s health care law, it was not used even once in the six hours of Supreme Court oral argument that took place over the span of three days. President Obama was also never mentioned by name. The Supreme Court is meant to be an unbiased, non-partisan entity, isolated from the political whims of the other branches of government. Its decisions must be arrived at in the most impartial way possible because these decisions set precedents that will be followed forever, or until overturned by a later decision.
There is evident doubt among at least five of the nine Supreme Court justices regarding the constitutionality of the individual mandate at the heart of the Affordable Care Act. If the mandate is struck down it is likely that all 450 some provisions, including many uncontroversial provisions, will fail with it. The mandate is the main funding mechanism for a wide range of other programs in the law.
The Obama administration and its supporters take pride in bringing affordable health care to 40 million Americans who did not have it before, but their performance in the oral arguments last week was disorganized and unconvincing. General Verrilli should have run with the arguments that the liberal justices gave him. Better yet, he should have come up with these arguments himself and stated them clearly. This law enables the Federal Government to regulate the health insurance market, an inter-state market that is inseparable from the health care system – a system that everyone is a participant in by nature of being human, vulnerable to sickness and injury. The health care system takes care of the health of the American people; it determines whether or not they have ability to stay healthy and to stay alive. “The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States.”2 The Solicitor General should have kept the ball in Obama’s court and argued for the right of the American people to have affordable health care, and the duty of the government to provide for them. But instead he got caught up in hypothetical arguments about broccoli. Talk about falling short of high hopes.