Obamacare and Supreme Court Review (Part One)

(Note: This is the first segment in a three part series.)

The powerful forces of conservatism to maintain the status quo are typically easy to identify.  Through control of elected representatives in the presidency and Congress, they complete a trifecta of sorts by decrying the temptation of the appointed branch toward so called judicial activism.  Sometimes, the forces are not so obvious, yet equally effective.  When not favored by the electorate, conservatism exercises a vice grip on the judiciary to undermine the need for change, using whatever methods are required, even judicial activism in its most liberal connotation.  Political labels are relatively unimportant.  It’s the final grade on preservation of the status quo that counts on the report card.

The national media is presently flush in excited discussion.  The US Supreme Court recently entertains three days of grueling oral argument regarding the constitutionality of the new national healthcare law.  Its familiar label has come to be known to the ordinary citizen simply as Obamacare.

In March 2010 a triumphant President Obama signed into law his landmark national health care overhaul, saying it enshrined “the core principle that everybody should have some basic security when it comes to their health care.”  The passage of this signature legislation had escaped every American leader that has tackled the issue dating back to President Theodore Roosevelt, more than 100 years ago.

The plain fact is that a great number of what estimates project to be the 30 million Americans who will be able to obtain health insurance coverage for the first time under the new law are ordinary citizens of color.  The new law focuses on reform of the private health insurance market.  Benefits include a child’s ability to remain on parents’ family insurance plan coverage to age 26; improved prescription drug coverage under Medicare; and documented cost savings of $1.3 Trillion over a 20 year period (according to the nonpartisan Congressional Budget Office, as compared to an “alternative” model where “nothing” is done).

However, one of the law’s principle benefits, the elimination of an insurance company’s previous right to deny coverage on the basis of pre-existing conditions, is not designed to take effect until 2014, after the upcoming 2012 presidential election.  Perhaps Congress did get this part right.  Provide the people with a second bite at the apple, a final referendum prior to full implementation.

Meanwhile, conservative Republicans and Tea Party activists nonetheless seek to “repeal and replace” the law, believing, rightly or wrongly, that their success in the 2010 midterm elections was a mandate to do so.  But, when asked what their “replace” law should look like, they can cite no additional benefits which the new law does not already contain.  They are completely lacking on specifics.  This is an ominous indication of obstructionism masquerading as conservatism.

At issue is the authority of the federal government to require citizens to purchase insurance coverage.  Democrats feel that the problem has reached a level of scale which requires a coordinated national response.  Historically, that means the problem has to be really big by definition.  On the other hand, Republicans don’t see a problem that cannot be better or at least more efficiently addressed by the for profit private sector.

Enacted by a Democratically controlled US Congress, the new healthcare law is destined to have its fate determined by the 9 member US Supreme Court.  Of great significance, its makeup presently is understood to be 5-4 conservative-leaning Republican.  The situation presents an interesting confrontation between the three branches of government.

But as provocative as it sounds, this confrontation is hardly new in the annals of US History.

(Next week's second segment will trace the inter-relationship of judicial review with the  workings of the executive branch during the course of several highly visible presidential administrations from Thomas Jefferson to George W. Bush/"43".)


-Michael D'Angelo