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Obamacare gets high court hearing next week

People stand at the foot of the steps of the Supreme Court. (REUTERS/Molly Riley)

President Barack Obama’s healthcare overhaul faces its biggest court test next week, capping a legal battle that could reshape the powers of the U.S. government, redefine medical care for most Americans and transform the 2012 election campaign.

The justices on the U.S. Supreme Court will pepper lawyers with questions, possibly signaling how they might rule, during a modern-day record six hours of oral arguments from Monday through Wednesday.

The justices, five of whom were appointed by Republican presidents and four by Democratic ones, promise a ruling by late June on the 2010 law passed by Congress that already has begun to revamp a $2.6 trillion healthcare industry representing nearly 18 percent of the U.S. economy.

While it will likely be impossible to predict with certainty how the court will rule on Democrat Obama’s signature domestic policy achievement, the questions and comments from the bench might offer clues about the justices’ eventual decision.

It may be the court’s most significant ruling with political impact since its decision in 2000 to halt the Florida vote recount, clearing the way for Republican George W. Bush to become president over Democrat Al Gore.

Stephen Hess, a senior fellow at the Brookings Institution and a former adviser to four presidents, said a case like healthcare occurred once in a generation or maybe even longer, unique both legally and politically.

“A victory for the president would be very substantial. A defeat for the president means that in a sense we politically reopen the situation,” Hess said.

Despite their importance, the hearings will be seen by only 400 people each day. Supreme Court hearings have never been broadcast live or recorded on video. The court will release audio recordings and transcripts in the afternoon each day.

The ruling is likely to reverberate in the run-up to congressional and presidential elections on November 6 when Obama will seek another four-year term in the White House.

The arguments will turn largely on whether Congress exceeded its powers under the U.S. Constitution by requiring Americans to obtain insurance by 2014 or pay a penalty.

Two years ago to the day, on March 23, 2010, Obama signed the legislation into law. It seeks to provide health insurance to more than 30 million previously uninsured Americans and to slow down soaring healthcare costs.

The main Republican presidential hopefuls vehemently oppose the law, depicting it as an evil of big government, and vow to repeal it. Opinion polls show Americans deeply divided, and more than half the 50 states – 26 – have joined together to bring the challenge to the highest U.S. court.

Supporters and opponents of the law will demonstrate in Washington during the arguments.


Top U.S. lawyers view it as precedent-setting.

Tom Goldstein, a lawyer who argues before the court and is a founder of SCOTUSblog, a website that follows the court, said the ruling would be historic, deciding a fundamental question about a critical part of the Constitution – the definition of Congress’ powers.

“However the court rules, its decision is going to be cited for the next 250 years. Nothing in modern American history compares,” he said.

The 26 states, represented by lawyer Paul Clement, solicitor general during George W. Bush’s presidency, argue that if individuals can be required to buy insurance, Congress can next mandate purchases of American cars or any other product, whether people want them or not.

“This is an unprecedented use of congressional power,” Clement said in an interview, insisting the government’s assertion of authority on health insurance opened the door to extraordinary control over other areas.

“This is an awfully attractive approach. Why did Congress not use it at all for 220 years?” asked Clement, an argument he likely will make before the court in urging that the healthcare law be struck down in its entirety.

Administration attorneys have urged the Supreme Court to uphold the law as constitutional.

They argued in written briefs that Congress has broad authority to regulate interstate commerce and that the insurance purchase requirement known as the individual mandate is part of a comprehensive effort to address a national healthcare crisis.

The administration has compared the healthcare law with other landmark laws such as the Social Security Act, the Civil Rights Act and the Voting Rights Act that faced similar legal challenges, but were upheld in court.

Solicitor General Donald Verrilli, the administration’s top courtroom lawyer who will defend the law, declined comment on the substance of the case, a Justice Department spokeswoman said.


The dispute, which could alter the balance of power between the federal government and the states, is reminiscent of Supreme Court battles in the 1930s over President Franklin Roosevelt‘s “New Deal” programs in response to the Great Depression.

The last time the Supreme Court invalidated a major piece of federal economic legislation for exceeding Congress’ power was in 1936, when it struck down labor and other regulations for the coal industry.

Richard Friedman, a University of Michigan law professor, said he viewed the law as a valid attempt to regulate a complex industry with enormous national implications.

“If the court invalidates the individual mandate, then a difficult question arises whether the court should leave the gutted statute in place or send Congress back to the drawing board,” said Friedman, a constitutional law expert.

The court could leave in place the entire law, or could strike down the individual insurance mandate or other provisions. It could also invalidate the entire law or put off a ruling on the mandate until after it takes effect in 2014.

The American Bar Association legal group, in a special edition of its Preview magazine on the healthcare case, said its poll of academics and lawyers found that 85 percent thought the law would be upheld.

Predictions could change after the arguments.

For the law to be upheld, the administration probably would have to get at least one vote from the court’s conservative Republican appointees.

The court’s four liberals, all appointees of Democratic presidents, are likely to uphold the law. Justices Ruth Bader Ginsburg and Stephen Breyer were appointed by President Bill Clinton, while Obama named Justices Sonia Sotomayor and Elena Kagan.

Of the five Republican conservative appointees, Justice Clarence Thomas was seen as a sure vote to strike down the mandate, based on his past opinions.

It was unclear how Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and the more moderate Anthony Kennedy, who often controls the outcome, would vote.

The healthcare law and what it symbolized about the federal government’s power played a key role in the 2010 elections and helped Republicans take control of the U.S. House of Representatives from Democrats who supported it.

While overshadowed as an issue by jobs and the weak U.S. economy in the 2012 elections, healthcare still could be seized on by Obama’s Republican presidential rival if the court upholds the law. The timing of the ruling will play into that.

The Supreme Court cases are National Federation of Independent Business v. Sebelius, No. 11-393; U.S. Department of Health and Human Services v. Florida, No. 11-398; and Florida v. Department of Health and Human Services, No. 11-400.

(Additional reporting by Jeremy Pelofsy and Joan Biskupic; Editing by Howard Goller and Peter Cooney)

(c) Copyright Thomson Reuters 2012

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