Monday, June 25, 2012

Court Watch

With the basketball season completed, we turn to a different court for spectator sport. Within a few hours, or possibly a few days, the US Supreme Court, in order to complete their season (they call it a "session"), will need to produce some decisions on critical cases they have agreed to consider.

The biggest is the challenge made by a large number of Republican-controlled state governments to the mandate to buy health insurance in the Affordable Care Act, a/k/a Obamacare.  Questions from the Court when arguments on the case were heard have convinced Courtside spectators that the key votes, Justice Kennedy and Chief Justice Roberts, are inclined to argue that the requirement to purchase private health care insurance, or pay a fine, has a toe or more beyond the out-of-bounds line permitted by the Commerce clause of the Constitution.  Apparently, the four consistently liberal (or Democratic) votes of the Court are expected to uphold the bill's provisions, and the three extreme right-wingers (Alito, Scalia, and Roberts) will not.

Roberts has said, though, that he does not want the Court to make major opinions through 5-4 decisions (which has been the pattern for the past decade or so), which would suggest he might be looking for a way out of the box.  From what I've read, there is precedent for ruling that a court should not decide on the validity of a tax until it is collected, and the fine envisioned by the law does not take effect until 2014.  He might therefore be able to put together a majority to kick the can down the road until then, while offering some guidance to the Congress, and the President, about what would make the mandate--something essential to the whole program of reducing healthcare costs through universal insurance--a constitutional one.

I do not dismiss out of hand the argument that there is some issue in requiring citizens to purchase a product from private providers, even if the law has provisions to ensure standards in the product offered, to control costs, and encourage competition, and even if the fine is relatively small and difficult to collect.  I think the requirement could fully pass legal muster if there were more options:  a government-provided option would be nice (!); people could post a bond guaranteeing payment (if they were rich); or there could be a (larger) fine if public hospitals take on uninsured patients who could have completed their civic duties related to insuring themselves, and the public, aginst their health costs. (Something also should be done to consider those from other countries--whether legally in the country or not--who get sick here, especially if we want to continue getting those tourist dollars, which we should.)

So, that's what I will "predict"--a 6-3 majority for delaying any judgment at this time, while offering some suggestions to make the mandate a constitutional one, with the three hardcore justices marginalized into outright opposition to any imposition on our freedom to sponge off others' responsible behavior.  Actually, I think this is the best outcome I can hope for, so wishing it were so is the best I can do.

I think that Roberts and Kennedy will be moved by knowledge that simply overturning the will of the people, as expressed by Congress, exposes them to contempt and intolerable political pressure.  President Obama will be able to attack the Court's decision and show it as an example of why he must be re-elected, to have a chance to bring more nominees who will bring reason and equity to the Court.

Two other significant cases that are likely to be decided:  the Justices are likely to uphold the Arizona anti-illegals law which requires state officials to try to identify likely immigration violators and hold them if the Feds want to deport them.  There are probably four strong votes against that decision, but a majority in favor of profiling and deportation.  Second, the Montana state law prohibiting corporations from contributing to state elections has been challenged under the understanding coming from the Court's spurious "Citizens United" decision authorizing unlimited private (and corporate) "free speech" independent of official campaign contributions.  The law  is 100 years old and was enacted because of obvious corruption issues that come from wealthy interests seeking to legislate through campaign contributions.  This is a chance to pull back a little from the extreme Citizens United decision, based on the horrors the Court must be observing in the current campaign.  I don't think they are sensible enough to do that, though.

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