All Eyes On The Supreme Court

Capitol Hill’s collective gaze is fixed upon the Supreme Court, which is poised to announce decisions on several cases by the end of its term in late June. The marquee event, of course, is the constitutionality of the Patient Protection and Affordable Care Act (ACA). Will the Court invalidate the signature accomplishment of the Democratic 111th Congress and the Obama administration? Given the current climate in Congress and the fact that the law passed without bipartisan support, the stakes are high.

The central issue is whether Congress can mandate that individuals buy health insurance. Does Congress’s authority under the Commerce Clause (Art. I, sec. 8, cl. 3) extend to requiring citizens to buy a product or else pay a penalty?

What might happen?
The Court has four options: uphold the ACA completely; strike it down entirely; strike some provisions but keep others; or punt on the main question. The first option would come as an enormous surprise, but never underestimate the power of the judicial branch to do the unexpected. Striking the law would be a victory for Republicans, although coming up with a workable Plan B afterwards will be no picnic either, especially with provisions like children remaining on parents’ insurance policies until age 26 already in effect.

The third option is perhaps most interesting. If the mandate is unconstitutional, can other parts of the law be preserved? In legislative parlance, is the mandate “severable”? The Obama administration has argued no, that popular features—like not allowing insurers to decline coverage for preexisting conditions—can’t work without the mandate. The final possibility involves the Court kicking the can down the road, at least on some provisions. Since the law phases in over several years, the justices could simply wait until penalties have actually been imposed, likely around 2014.

The mysterious decision-making process at the Supreme Court
After a case is heard, the justices meet privately and their votes are tallied. Unanimous decisions suggest certainty and lend that much more legitimacy to the Court’s pronouncements, whereas closely split decisions—especially a 5:4 split—imply deep divisions in jurisprudence. It is no coincidence that some of the most controversial decisions in recent years (Bush v. Gore, Citizens United) have been decided by the narrowest of margins, 5:4. Even though the Supreme Court gets higher marks than Congress or the President, a majority of respondents to recent public opinion polls now believe that Supreme Court justices allow their own political views to influence their decisions. A deeply divided bench only strengthens that view.

If the Chief Justice is in the majority on a particular case, he assigns which justice will write the opinion. (If he’s not, the most senior justice in the majority assigns it.) All the justices are free to concur or dissent, in full or in part, which adds further confusion by fragmenting the voice of the Court. Should all or some of the ACA be upheld, Chief Justice Roberts could even join the majority and assign himself the task of writing the controlling opinion, presumably to limit its scope as much as possible.

Other major issues before the Court
Another major case involves the preemption doctrine. Based on the Supremacy Clause (Art. VI, sec. 2), it means that when an issue is clearly national in nature, federal law “trumps” state law. Arizona’s tough immigration statute allowing police to ask individuals to prove their legal status presents such a test. Congress says it alone has authority to legislate border protection, and Arizona’s law goes too far and risks racial profiling. Arizona responds that lax enforcement of existing law left the state no choice but to act on its own.

As usual, congressional redistricting led to several Court rulings, including one that requires Texas to create two predominantly Latino districts among the four new districts added, rather than just one. Some states have passed voter identification laws that will ultimately face legal challenges. Supporters say they are just trying to protect the integrity of elections by requiring voters to prove their eligibility, while opponents counter that these new requirements constitute thinly veiled attempts to discourage certain minority groups from voting.

Finally, there is a chance that the Court will decide to revisit its Citizens United ruling just two years later. The Montana Supreme Court upheld a ban on corporate spending in state elections that is at odds with Citizens United. As often happens when states or lower courts don’t follow the high court’s precedent, the Supreme Court issued a stay while it decides whether to hear arguments (as Montana’s Attorney General urges) or issue a “summary reversal” overturning the Montana Supreme Court’s decision with no further arguments. An announcement is expected by the end of this term.