Tense lull, legislative limbo as nation waits for high court to rule on 'Obamacare'

Art Lien / NBC News

Gregory Katsas speaks March 26, 2012 as Associate Justice Sonia Sotomayor and Associate Justice Samuel Alito Jr. listen at the Supreme Court in Washington.

With three days of Supreme Court oral argument in the challenges to the 2010 health care law now over, a tense lull has settled over Washington.

Health care reform “cannot wait, it must not wait, and it will not wait another year,” President Barack Obama said on Feb. 23, 2009. But Obama and everyone else must wait at least several more weeks to learn the fate of the health care overhaul he signed into law in 2010.

With the court’s public ritual over, it’s not that there aren’t big decisions being made ... it’s just that they’re all being made behind closed doors.

On Friday, hidden from news cameras, sketch artists, and reporters, the justices will hold one of their weekly conferences.

And at the end of this private meeting -- not recorded for public release as the oral arguments were -- they will have voted on all of the Affordable Care Act issues. This includes the individual insurance mandate, what parts of the law can stand if the mandate is void, and the expansion of the Medicaid program.

According to George Washington University law professor Orin Kerr, a former law clerk for Justice Anthony Kennedy, the justices “will take tentative votes as to how to decide the case. Based on those tentative votes, different justices will be assigned to draft the majority opinion -- or perhaps majority opinions, as there are several moving parts in this case. Eventually, proposed majority opinions will be circulated among the justices: If any proposed opinion gets five votes, it becomes a majority opinion of the court.”

Dr. Zeke Emanuel, former White House advisor for health policy in the Obama administration, offers his perspective on the impending fate of Obama's "Affordable Care Act."

There are more than 30 other cases in which the justices haven’t yet issued rulings this term. As the weeks go by and the court announces its rulings, the yet-to-be-decided list will dwindle so that by June 25, the last scheduled day of the court’s 2011-2012 term, the ACA cases may be the last ones remaining to be announced.

While no one can predict how the justices will decide based on the questions they asked during oral arguments, the individual mandate seems at risk.

Justice Kennedy said Tuesday that the government is telling the individual citizen that he must buy insurance, “and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.”

“Do you not have a heavy burden of justification?” Kennedy asked Solicitor General Donald Verrilli in Tuesday’s argument.

Even if a majority of the justices found the mandate to be unconstitutional, there are, said Justice Ruth Bader Ginsburg Wednesday, “so many things in this act that are unquestionably okay.” If the mandate is struck down, the problem for the justices who are supporters of the law would then be to “salvage rather than throwing out everything,” as Ginsburg put it.

Read our coverage of each day of the oral arguments:
Court signals entire health care law might need to be struck down
Supreme Court expresses skepticism over constitutionality of health care mandate
Court signals it will decide constitutionality of individual mandate

Regardless of how the justices’ decision turns out, the political impact will be powerful and immediate. 

A ruling striking down the mandate or the whole law might cause a backlash among Democrats comparable to that caused by the 2000 Bush v. Gore decision.

Chris Jennings, a health care policy advisor to President Bill Clinton, said a ruling striking down the mandate or the law might cause the Democratic base voters to work even harder to elect Democrats on November.

Until now, he said, many Democrats “haven’t been engaged in a meaningful way” in making the case for the ACA. Many Democrats, especially on left side of the party, were dissatisfied with the law, preferring a single-payer system or “Medicare for All.” But the court might light a fire under them.

“For the court to strike down this law would be to presume the powers of the Congress and abandon its role as an impartial and deliberate decider of constitutional law," said Sen. Richard Blumenthal, D-Conn., Wednesday.

Art Lien/NBC News

Justice Stephen Breyer holds two sections of the Affordable Care Act during a third day of arguments over the fate of the health care law.

But it’s worth remembering that the high court has struck down all or parts of more than 160 federal laws since 1789, more than a dozen since 2000.

Will Congress act if the court strikes down the law? Probably not, other than having some “messaging” votes in the months leading up to Election Day.

House Republicans had one of those votes last week when they voted to eliminate the Medicare cost control board that is part of the ACA. 

Read the transcripts from the oral arguments:
The afternoon transcript of Wednesday's oral arguments (.pdf)
The morning transcript of Wednesday's oral arguments (.pdf)

The transcript of Tuesday's arguments (.pdf)
The transcript of Monday's oral arguments (.pdf) 

It’s not likely Congress can do anything substantive until 2013: remember that it took more than a year to write and enact the ACA. The Senate Finance Committee chairman Max Baucus held his first hearing on Feb. 25, 2009 -- and the law was signed by Obama on March 23, 2010.

Debbee Keller, a spokeswoman for the House Committee on Energy and Commerce, which would be one of the starting points for health care legislation, said Thursday Republicans “have already begun advancing bills to improve our health care system, including medical liability reform to end excessive lawsuits and bring down costs for patients, doctors, and taxpayers. The Supreme Court's ruling will be a major turning point in this debate, and we look forward to developing additional replacement legislation when the Court rules.”

The Supreme Court is debating how much of the health care overhaul law should be salvaged if the health insurance requirement is thrown out. NBC's Pete Williams reports.

But after a potentially traumatic Supreme Court ruling for ACA supporters, it’s hard to imagine bipartisan consensus, even on small pragmatic reforms. 

In the lull before the justices hand down their ruling, both Democrats and Republicans have plenty of time to think about how much the least visible branch of government matters.

“We’re going to pay the price of this Supreme Court for a generation,” Sen. Charles Schumer, D-N.Y., lamented back in 2008 when the high court upheld Indiana’s voter identification law.

Either supporters or opponents of the heath care law might be repeating those words this summer.

 


 

Discuss this post

Jump to discussion page: 1 ... 12 13 14

When President Stinky (aka BO) was studying Constitutional law, he did so through the same prism that a computer hacker studies computer operating systems, looking for places that can be exploited in ways not considered by the developers of the OS (or Founding Fathers in the case of the Constitution). Stinks considers the Justices as a sort of firewall or anti-virus program that's designed to prevent exploits. Stinky is the virus.

    Reply#350 - Wed Apr 4, 2012 9:42 AM EDT

    The court is wondering whether the contitutional lawyer in the whitehouse has a clue as to what are the functions of the 3 independent branches of our government. Holder and Obama just are not qualified.

      Reply#351 - Wed Apr 4, 2012 10:45 AM EDT

      A constitutional attorney who doesn't have a clue? Hmmm? An Attorney General who also doesn't understand the Supreme Court's function? Hmmm? And your reason for making such a comment has nothing to do with the fact that both are black? They just happen to be two black idiots, huh? Hmmm? And of course you are much better qualified and much more knowledgeable? Hmmm?

        #351.1 - Thu Apr 5, 2012 12:24 AM EDT

        BTW; since such a big deal is being made about Pres Obama's words to Congress; may I remind everybody that George Bush spoke these same words almost verbatim during his presidency. Blowing this issue out of proportion will serve only to bring more attention to the failed policies of George Bush and will not harm the President in any way. Surprising enough; some people actually do keep up with the times. The difference between what Bush said and what Pres Obama said is that Bush is white and the President is a black man.

          #351.2 - Thu Apr 5, 2012 10:55 PM EDT
          Reply

          (I am trying to write this with my new glasses, {not using BOLD}...mistakes are guaranteed, lol)! Here goes.

          I have now listened to and read much about this subject and I feel ready to respond. The reasoning behind the opposition to the health care bill is exaggerated from what I can tell AND; it is one more opportunity to show hatred toward a black president who did what has not been done to date by any white president, which will guarantee his place in the history books, PLUS; no one has offered a better solution so I am still waiting to find out what the alternatives are according to the naysayers. In the final analysis, what is to become of the poor? Many have offered systems or strategies from other governments but none fully address the issue of those who are hopelessly unemployed until or unless hard labor jobs return and are desirable; if that can be imagined.

          It seems that it never occurs to the ReSuckican Party that many who are poor "are poor" because of them. They gave away and sold most of the common laborer jobs throwing, instantly, millions out of work without the chance to recover. So now, what happens to them if they become ill? Are we saying collectively, "we don't care?" How does one purchase insurance without a source of income? How do they pay the premiums? Millions would die but obviously millions wouldn't give a damn! So, it is a two part plan to rid this nation of its "undesirables"; take away ALL decent paying jobs WITH benefits and we kill two bird's with one stone! Can't get coverage and you will die! Can't find a job above minimum wage, (minimum wage jobs rarely offer benefits and are generally part time), can't find a decent paying job with benefits (which whites will cry about if they don't get that job); and you will die! As for me; I AM my brother's keeper, I got him; he ain't heavy, he's my brother!

            Reply#352 - Thu Apr 5, 2012 12:13 AM EDT

            The court has already ruled, Obama Lost! Sotomayor leaked it to Oduma!

            • 1 vote
            Reply#353 - Thu Apr 5, 2012 2:01 PM EDT

            The constitution means nothing to the Demorats! Obama "It is a bill of negative rights" That is, no body will tell me what I can't do!

            • 1 vote
            Reply#354 - Thu Apr 5, 2012 2:03 PM EDT

            Where all Things Began

            In the beginning there was social justice throughout the land. Food was plentiful, there for the picking. Man lived in harmony with Nature having no fear or worries. Even the wild beasts were friendly. Climate changed as always without someone blaming Man. Clothing was optional since God placed them in a temperate earthy paradise and they knew no sin. Eve was in a utopia. There was no worry about wardrobe, shopping, cooking or housework. Dishes were not yet invented.

            God told Adam and Eve to eat of all the fruit except that from the “Tree Of the knowledge of good and evil” in the center of the Garden. If you eat that fruit, you will be doomed to die. The downfall of the godly utopia began when Eve encountered a Progressive Snake in the grass. (It should have been hanging from a tree.)These creatures are to be avoided at all cost. The snake came to the woman and said “Really?” he asked. None of the fruit in the garden? God says you mustn’t eat any of it? Of course we may eat it, the woman told him. It’s only the fruit from the center of the garden that we mustn’t eat it or even touch it, or we will die.

            That’s a lie!” the serpent hissed. “You’ll not die” The talking snake convinced Eve to disobey God, eat of the forbidden fruit and give some to Adam. Eve believed the first lie that there are no absolute truths.

            The serpent is with us, as from the beginning.

            “If my daughters make a mistake, I don’t want them to be burdened with a baby”(BO) The serpent hissed “YESSSS

            “America is not a Christian Nation” (BO) YESSSS

            “Yeah, I am a Christian, but, there are many paths to God”(BO) YESSSS

            “No, No, No, not God Bless America, God___— America”(JW) YESSSS

            “Never been proud of my country,” until we took over! (MO) YESSSS

            “Reparations would not go far enough” (BO) YESSSS

            • 1 vote
            Reply#355 - Thu Apr 5, 2012 2:04 PM EDT
            Jump to discussion page: 1 ... 12 13 14
            You're in Easy Mode. If you prefer, you can use XHTML Mode instead.
            As a new user, you may notice a few temporary content restrictions. Click here for more info.