Barack Worried About Survival of Obamacare

by John M. Curtis
(310) 204-8700

Copyright April 6, 2012
All Rights Reserved.                                         

               After six hours of contentious oral arguments before the U.S. Supreme Court, President Barack Obama showed concerns that his signature health care legislation was in jeopardy of being overturned.  Defended by 54-year-old Solicitor General Donald Verrilli, Barack expressed confidence that “Obamacare” would be upheld, though by a close margin in the High Court.  Argued effectively by Atty. Paul Clement representing 26 states attorneys generals, at stake was the Constitution’s Commerce Clause forbidding the government from forcing citizens across state lines to buy government backed products or programs.  “I’m confident this will be upheld because it should be upheld,” said Barack, giving the most feeble argument.  Verrilli had to be more persuasive before the High Court, defending the law against pointed criticism by Clement that Obamacare violated the Commerce Clause.

            Without saying it, Barack said, “it should be upheld” because there’s plenty of mandates in Medicare, Medicaid and Social Security.  No one can opt out of paying for Medicare, Medicaid and Social Security.  Because Sen. Joe Lieberman (I-Conn.) vetoed the single-payer “Medicare for All” bill, the White House was forced to settle for a mandated insurance program.  States attorneys generals objected because of the Commerce Clause, preventing the government from forcing citizens to buy anything across state lines.  Overturning the law would be “an unprecedented and extraordinary step” because of the court’s past objections to Judicial Activism, where the High Court rules against state-sponsored legislation.  But the High Court must rule on the constitutionality of state-sponsored legislation that may run afoul with federal law that grants citizens more latitude.

            Barack showed concern about the highly politicized nature of the current Supreme Court.  “For years what we’ve heard is the biggest problem on the bench was judicial activism,” said Obama, referring to the right wing’s beef with liberal judges legislating from the bench.  If right wing justices like Scalia and Thomas help to overturn Obamacare, the GOP wouldn’t consider that judicial activism.  Only when liberal judges rule on progressive causes do they scream about judicial activism.  Obama pointed out that judges were “unelected officials,” the same line of reasoning once used by the late President Ronald Reagan, critical of liberal courts overturning right wing agendas.  On the left or right side of the High Court, ideological differences make up predictable voting records.  Only the forgotten middle of swing-voting Justice Anthony Kennedy will decide the fate of Obamacare.

            Ruling on Constitutional issues should be the only concern of Supreme Court justices, too busy defending the left or the right.  When you look at the real Constitutional debate about the Commerce Clause, it’s clear that Chief Justice John Roberts and his conservative friends Justices Antonin Scalia, Clarence Thomas, and Samuel Alito only care about handing Obama a political defeat.  They know that forcing citizens to buy Obamacare has nothing to do with buying broccoli, cell phones and funeral plots, as Scalia, Roberts and Alito suggest.  It’s comparable to the payroll tax on Medicare and Social Security.  Both are entitlement programs the government mandates for every working citizen.  Insisting on mandatory payroll deductions is comparable to requiring every citizen buy health insurance.  Obamacare makes health insurance accessible, affordable and doable for ordinary citizens.

            Obamacare’s key provision involves eliminating the historic insurance industry distinction between individual and group insurance.  Under Obamacare, all individuals can obtain health insurance without showing proof of insurability, namely, past or current medical conditions.  Today’s system punishes individuals with preexisting conditions but gives group subscribers a free pass.  With Obamacare, insurers, like they do presently with group insurance, must give policies to all who apply.  Scalia, Roberts and Alito know that it’s not about forcing individuals to buy broccoli, cell phones or funeral plots.  Congressional Republicans refused to allow an Obamacare payroll tax.  Obama could only get a mandatory purchase agreement, now challenged by conservatives on and off the Court.  There are plenty of precedents under the Commerce Clause for the government to require payments.

            Whatever the Supreme Court decides about Obamacare, they should keep politics out of the equation and rule on existing legal precedent.  If the justices follow precedents, they’ll find the government mandating payments for entitlements like Social Security and Medicare.  Requiring citizens to carry medical insurance is no different really than auto insurance, where the state demonstrates a compelling need to protect the property, health and safety of other drivers and pedestrians.  Though Solicitor General Donald Verrilli wasn’t too articulate, the High Court knows the case isn’t about buying broccoli, cell phones or funeral plots.  It’s about fixing a broken system that finds millions without insurance and those with it paying too much and covering too little.  If the High Court sticks to the facts, ignores the politics and focuses on the benefits, Obamacare will become a reality in 2014.

John M. Curtis writes politically neutral commentary analyzing spin in national and global news.  He's editor of OnlineColumnist.com.and author of Dodging the Bullet and Operation Charisma.       

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