Obamacare: How the Supreme Court could rule unanimously

Many pundits predict  the Supreme Court will decide the Obamacare case  5:4 along partisan lines.  Justices Scalia,  Alito, and Thomas and Chief Justice Roberts,  they assume,  will vote to strike the legislation down,   and justices Breyer,  Ginsburg,  Sotomayor and Kagan will vote to uphold it.  If these predictions are correct,  the outcome will depend on Justice Kennedy,  often considered the “swing” vote between Court conservatives and liberals. 

The guessing is that Justice Kennedy will tip the case to the conservative side.

This is all most unfortunate.  An extremely important decision about public policy is at stake,  and policy decisions are supposed to be made by elected politicians, not by judicial ideologues. 

Still,  policy decisions by elected officials must not exceed the limits posed by the Constitution.  And there are weighty reasons why mandated purchase of insurance could be considered unconstitutional.  

Back in 1954 when the Supreme Court  found segregated public schools to be unconstitutional,  Chief Justice Earl Warren managed to get a unanimous decision of this highly contentious case.  It is generally thought that this unanimity helped gain eventual public acceptance of the decision in Brown v. Board of Education.  . 

A unanimous decision by the nine justices,  avoiding the appearance of partisanship, would be equally desirable in the current case. A unanimous decision to uphold Obamacare is unlikely.  But a unanimous decision to declare it unconstitutional is not impossible and could be the best possible outcome both from the legal and the policy point of view.  .

The Administration argues that mandated purchase of insurance is essential if everyone is to be insured.  But a unanimous Court could rely on reasoning supplied by an amicus curia brief submitted to the Court on behalf of 50 medical doctors (and other people) who support a single-payer insurance system.   The doctors’ basic argument is that the mandate to buy insurance cannot be justified as the only way to skin the cat, since an alternative exists.  They point out that a  single payer system supported by taxes is clearly constitutional,  exists in a number of countries,  and already exists in the U.S. for people over 65. 

Such reasoning could unite all members of the Court, would  rest on strong constitutional logic and precedent,  and would  help to focus future policy discussions by elected leaders.  And from comments made during oral argument, at least one justice (interestingly,  Kennedy) was familiar with the doctors’ argument.  As the Court’s principal swing voter,   Kennedy  would be in a strong position to lead the Court to a unanimous decision along these lines if he is so inclined.

Such a decision would give everyone something to be happy about.  Conservatives would be happy that the Court avoided setting the dangerous precedent that people can be compelled to buy goods or services.  Liberals could take satisfaction that the Court had drawn favorable attention to  a single-payer system paid for by taxes, their preferred solution all along,  and perhaps helped make such a system politically possible in the near future.    

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This piece has run in the Daily Telegram,  Adrian, Michigan,  and on CommonDreams.org .

Repudiate "Obamacare"? Here is a radical strategy for Obama

No matter how the Supreme Court decides the medical insurance cases, we face prolonged uncertainty. If it upholds the law, Republicans will sabotage implementation and promise to repeal it when they return to power. If it strikes down the law, the uncertainty will be what, if anything, Congress will do next. Confusion will be even greater if the Court only strikes down parts of the law.

The only way to avoid crippling uncertainty will be to stop the Supreme Court from making any decision at all. President Obama could do this by announcing that he is now convinced—after considering the arguments at the Court---that the 2700 page law is unconstitutional. He would add that he has also concluded the law is unwise: too complex, precarious in its financing, too many provisions added merely to gain votes needed for passage. He can say we must do better than this and ask Congress to repeal the entire mess, depriving the Supreme Court of any opportunity to make a further mess. Congress would undoubtedly comply with this request.

Obama would explain that the obvious solution to our insurance problems would be a single-payer system (“Medicare for all”) financed by taxes, which would clearly be constitutional. Unfortunately he had to rule this out during his first term because he had promised not to raise taxes on anybody but the rich. He would apologize for making a promise that prevented him from doing what he thought best for the country.

Obama would announce that his re-election campaign will focus on showing voters why a single payer system is the best idea, noting that his promise not to raise taxes was only for his current term. He will note that elimination of insurance premiums (now paid directly or indirectly by employees) will make up for the tax increases required by a single payer system. In fact the average person will come out ahead since money now paying for insurance company management will be greatly reduced.

The President’s principal goal would be to convince conservatives and Republican voters, since most Democrats and liberals would already agree. He should stress the simplicity and efficiency of single payer systems and the experience of foreign countries with such systems. He should ask conservatives to consider whether, even if they feel secure with their present insurance, they can be sure that they won’t lose their jobs (and hence their insurance), and whether they can be sure that their children and grandchildren will be equally fortunate.

To guarantee enactment of single payer, Obama would ask voters—including Republicans--- to elect overwhelming Democratic majorities to Congress, “just this once.” If he can convince enough people, single payer could be implemented and not be reversed later on. Republican politicians, if they see overwhelming voter support for single payer, will get religion in a hurry. (Remember George “segregation forever” Wallace, who hastily abandoned this idea after the Voting Rights Act of 1965 brought large numbers of black voters to the polls.)

If he fails to convince enough people, Obama will lose the election. But he will be remembered as a great president who did his best to lead Americans in a direction he honestly thought desirable and was not afraid to admit making mistakes. And he will have helped educate public opinion so that a single payer system could become politically possible in the future.

Does President Obama have the imagination and courage to repudiate Obamacare? We will see.

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This piece has run in the Daily Telegram (Adrian, Michigan) and on CommonDreams.