I enjoyed the Republican repeal and replace protest on Capitol Hill this week as all those earnest new GOP and tea party representatives got their first chance to vote yes on no, in this case on health care reform. It was a short, symbolic measure, full of sound and fury, ultimately signifying nothing, since tout le beltway knows that this particular hot-air balloon will either crash in the Democratically-controlled Senate or be popped like a cheap piñata by a presidential veto.
What is less certain in these supercharged times is how the Supreme Court will rule when the 26-state legal challenge to the Affordable Care Act ultimately makes its way to the high court.
While states have sued the federal government before over such issues as auto emission standards and abortion laws, legal scholars say this is the biggest landmark challenge to federalism since Brown v. Board of Education in 1954 that made it unconstitutional for states to segregate schools.
The main focus of the health care reform challenge is the individual mandate, which requires all Americans to obtain health insurance beginning in 2014. Opponents also claim the ACA's expansion of Medicaid infringes on states' rights.
Three court rulings to date have towed the party line; two judges appointed by Democratic presidents have upheld the mandate, one Republican appointee ruled it unconstitutional.
But as John Schwartz recently pointed out in a New York Times op-ed, to predict that the Supreme Court would automatically fall in along similar party lines, with the Republican-appointed judges overturning reform 5-4, would be to ignore the deeper undercurrents that influence landmark decisions.
While opponents to the individual mandate argue that Congress has never ordered people to buy something, thereby regulating inactivity instead of activity, Harvard law professor Mark Tushnet says a 1942 Supreme Court ruling did just that in the case that paved the way for federal farm quotas.
Schwartz points out that the Court has been "reluctant to overturn congressional action, especially if the legislators themselves could repeal the measure" ever since Franklin Roosevelt and Congress prevailed over Court attempts to block the New Deal.
Ironically, one scholar suggests that the Obama administration might help its case by referring to the fine for not buying health insurance as a tax, something it was careful not to do when shepherding the bill through Congress. The Court has historically upheld the right of Congress to impose taxes.
The double irony, according to one health insurance insider about whom I recently blogged, is that the nation's health insurance giants actually favor the individual mandate, which after all drives 30 million new customers their way. But the consumer protections? Not so much.
Personalities and politics aside, legal scholars agree that the Supreme Court becomes much less predictable when the case involves extending or curtailing government power.
How do you think the Supreme Court will rule on health care reform?
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