The U.S. Supreme Court unlikely to strike down the health care law

Posted by Shyam Moondra

On March 23, 2010, President Barack Obama signed into the law the Affordable Care Act passed by then Democrat controlled Senate and House, which would gradually roll out comprehensive health care reforms by 2014. The most contentious element of the reforms is the individual mandate that requires all citizens, old or young and healthy or sick, to buy health insurance; the failure to do so would automatically trigger a penalty of around $1,000 a year unless exempted because of religious beliefs and financial hardship. Many conservative Americans consider this mandate to be unconstitutional and a power grab by the federal government. The government argues that the penalty is a "tax" which is within the constitutional mandate of the Congress.

The Obama administration's position is that without the individual mandate, the people with pre-existing conditions would either be denied insurance coverage by the insurance companies or the insurance premiums for such people would be prohibitively high. Also, the people would tend to buy health care insurance only when they get sick, thereby increasing the insurance premiums for everybody else. Many without insurance would just go to the hospital emergency room and get treated knowing that the law requires hospitals to treat sick people even if they are not insured and the cost of treating such people would then be borne by the taxpayers.

The individual mandate is not scheduled to go into effect until 2014, but many states controlled by the Republicans chose to seek pre-emptive legal remedy to freeze the so called Obamacare in tracks. Last week, the U.S. Supreme Court (USSC) heard the arguments on two key issues: (i) can the government force the citizens to buy a product or service they don't want to buy and (ii) can the federal government force the burden of the expanded Medicaid entitlement program on to the states without providing full funding.

Since the individual mandate has not been yet implemented, no harm has been caused to the citizens. Therefore, rather than instigate a train wreck, the USSC may choose to not take any action at this time and let the health care reform proceed. After the mandate has been implemented and there is enough data available on the actual experiences of the citizens on the cost-reduction objectives of the health care act, the USSC may then re-visit this issue at a later date after the November presidential elections. Tossing out the health care law now would make it look like a political decision and be perceived as extreme judicial activism which would be harmful to the court's credibility. The government's job is to solve problems and the USSC is part of the government. The USSC's politicized approach to an ideological problem would make them look like an extension of the radicalized Congressional Republicans which can't be good for the country. In any case, if the young people don't buy health care insurance, they will have to pay a lot more when they get old than they would pay if the individual mandate were implemented. There is nothing unconstitutional about the government's attempt to address the problem of high health care cost in the U.S.

The USSC has the following four options:

· Trust the Congress' judgment on fixing a major problem that has enormous implications for our economy and declare that the law is constitutional. Clearly, without the individual mandate, the escalating health care cost cannot be controlled.

· Do nothing. Since the most objectionable element of the health care act, the individual mandate, has not been yet implemented, it's premature to make a decision without knowing how this will turn out. So, in essence, the court could rule to not rule at this time and revisit the issue at some point in the future, after we have had some data on the results from the implementation of the law.

· Let the most of the law stay but declare that the individual mandate is unconstitutional. The Congress would then have to find a fix.

· Strike down the entire health care act including the things that are constitutional. This would seem an overreach by the conservatives on the bench and will do the most harm to the reputation of the USSC.

Given that rapidly increasing health care cost is a major problem, the Congress has the authority to pass laws related to taxes and commerce, and the fact that dismantling the Affordable Care Act would lead to massive disruptions and confusion making the health care problem even more acute than it is now, the USSC would likely opt for one of the first two options as described above.

Chief Justice John Roberts is not above the People

Posted by Shyam Moondra

John Roberts, the Chief Justice of the U.S. Supreme Court, made a critical comment about President Barack Obama's recent State of the Union address given at the joint session of Congress. I thought that was out of line and offensive. Roberts seemed to suggest that the Supreme Court is somehow immune from criticism by the elected officials or the American people. Justices also occasionally make mistakes like all other humans, so there is nothing wrong if President or anyone else for that matter criticizes them for their wrongheaded decisions or poor performance.

Roberts said that Obama's criticism of the court's decision to allow unlimited corporate campaign contributions during elections was an attempt to politicize the independent court. Hello! When Justices Scalia, Thomas, Roberts, and Alito always vote as a block, representing the views of conservatives, isn't the Supreme Court already politicized by the very same people who now complain about politicizing the Court? Justices are supposed to decide cases without bias or personal prejudices. How is it then that the court watchers often can predict beforehand how these conservatives (or liberal justices for that matter) would vote on any given controversial issue? When conservative justices banded together to elect Republican George W. Bush as the President vs. Democrat Albert Gore, wasn't that a political decision?

Today, we have a gridlock on the Supreme Court between the conservative and liberal justices. Most cases are decided by a single justice, Justice Kennedy. So why don't we just fire everybody else and let Kennedy decide all the cases that come in front of the Supreme Court. Today's Supreme Court is a sham.

Roberts' criticism of Obama reflects abuse of power bestowed upon the justices by virtue of the fact that they are appointed for life by the President and confirmed by Congress. With lifetime appointments also come a certain sense of arrogance and misconceived belief that the justices are above everybody else, when in fact they are not. In a democratic country, it's the People that are the supreme and not the justices who sit on the Supreme Court.

In recent years, my respect for the Supreme Court has declined largely because of how it functions. The Court increasingly shows lack of objectivity in deciding divisive issues such as abortion, campaign contributions, school prayer, etc. Their decisions are often wrapped in medieval age thought processes that are no longer valid. As time changes, so do customs, views, and temperament. As such, legal decisions should be based on contemporary interpretation of the constitution and not as if it is a standstill constant.

I like to propose a few reforms of this declining institution:
· Lifetime appointments should be abolished. The idea behind lifetime appointments was that they wouldn't have to worry about the politics of re-appointments. However, the fact is that the court is already politicized by the justices themselves, so by appointing them for four-year terms at a time wouldn't take away their independence. On the contrary, it would take away their arrogance and make them more accountable.

· There must be a way to remove justices, who consistently interpret constitution based on their own personal philosophy and make unfair and biased decisions (and that's why we need a term limit for justices).

· The Congress should explore if we could do away with the Supreme Court and replace it with a new more fluid mechanism in which judges are tapped from the federal bench on a case-by-case basis depending on the nature of the case and the expertise required. That way we have constantly changing faces on the high court bench and not have this Scalia-Thomas-Roberts-Alito axis of bias who frequently vote as a block based on their ideology rather than the merit of the case.

For now, Roberts should apologize to President Obama and the American people for his outburst. He may be above the law but he is not above the People.