Obama faces court crunch over health laws

They are six men and three women, aged between 51 and 79, and two of them have been in the same job since Ronald Reagan was in the White House.

They and their predecessors have handed down decisions that have changed the course of US history, from rulings on slavery to judgments on the Florida ballot recount which confirmed George W Bush's victory in the disputed 2000 presidential election.

Now President Barack Obama's political legacy is in the hands of the nine justices sitting on the US Supreme Court as it begins to consider, tomorrow, (Monday) the legality of his health care reforms.

As the downfall of communism was to Margaret Thatcher, Ronald Reagan, and Pope John Paul II, so the Patient Protection and Affordable Care Act, known by its critics as Obamacare, is to Obama.

The landmark legislation, signed into law two years ago on Friday, and intended to improve access to affordable health care for all, was hailed by Democrats as the most important advance of the century. Obama staked everything on forcing the law through Congress, against strident opposition. It enshrined, he said as he finally signed it, reforms that generations of Americans have fought for and marched for and hungered to see.

But this second anniversary may be its last: it may yet all be undone. Beginning tomorrow, three days of arguments will be heard before the Supreme Court regarding the constitutionality of Obamacare. In legal challenges brought by 26 of the states there are four questions being considered.

Can Congress compel individuals to buy health insurance, especially with the threat of a financial penalty if they fail to do so? Can Congress threaten to withhold funding of free basic health services for the poorest and the disabled - the Medicaid programme - to punish states that refuse to implement Obamacare? Is it too soon for lawsuits to be filed against Obamacare, since it won't become compulsory until 2014, and no penalties will be exacted for a further year? And, if compelling people to buy health insurance - the so-called individual mandate - is unconstitutional, can any part of Obamacare be implemented, or will the entire law need to be thrown out?

At the heart of all the complex legal arguments lies the continuing debate in America about the proper role of government.

Opponents ask, if the government can force citizens for their own good to purchase health insurance or pay a penalty, what's next? Could they be required to purchase green vegetables, green vehicles, or even green tea? If Washington can force such laws upon protesting states, what was the point of throwing off the rule of George III, 236 years ago?

Where the lines should be drawn between individual liberty and governmental control, and between the power of the federal government and the power of the states, are not simple matters to decide. Ask anyone in Britain what they think of laws handed down from Brussels and you have an idea of it.

Likewise, there is nothing simple about Obamacare. With more than 2,400 pages when originally offered for a vote in Congress in 2010, many legislators admitted to having not read the bill. And many details were still left to be determined. Despite assurances from the then House Speaker, Nancy Pelosi, a Democrat representing California, that people would understand the bill once it was passed, legislators and the public today are still unclear about what's in it. And one in seven Americans thinks wrongly that the law already has been struck down. No wonder confusion reigns.

A series of recent polls found the majority of Americans still oppose Obamacare, and most support its repeal, even though they also report that it has not yet had any impact on them. Though the appointed-for-life justices on the Supreme Court should be blind to the polls and the politics behind the legal arguments, four are perceived as leaning in a conservative direction, four as being liberals (including both women appointed by Obama), and one is viewed as a swing vote.

These six men and three women will have a voice in determining not only Obama's long-term legacy, but also his short-term future as the November election looms. If the individual mandate is found unconstitutional when they pronounce their decision - expected this summer - the health reforms cannot stand as written. And what could have been counted as an accomplishment in Obama's re-election campaign will instead be seen as a failure.

But if the court decides in favour of the health care law, Mitt Romney, the likely Republican nominee, will lose ammunition against the president and Obama will be given a shot in the arm.

And if the justices split their decisions, providing conflicting direction on the four questions considered, or postpone a decision until the compulsion and penalties actually kick in, Americans will all need some strong medicine to survive the headaches to come.


Mark McKinnon, a former Republican strategist who worked on the campaigns of George W Bush and John McCain, is Global Vice Chair of Hill+Knowlton Strategies