After the Supreme Court heard three days of oral arguments last week about the constitutionality of one of the nation’s most contentious pieces of legislation, President Barack Obama’s Patient Protection and Affordable Care Act, Cornell professors weighed in with reactions and predictions for the case’s outcome.
“I would say that the oral arguments shifted views here in the Law School, from the expectation of a relatively easy victory for the government to thinking it’s too close to call,” Prof. Kevin Clermont, law, said in an email Tuesday.
If upheld, the health care bill, signed into law by Obama in March 2010 and now often called Obamacare, would require almost all Americans to purchase health insurance plans or face fines, beginning in 2014. This particular aspect of the bill — arguably its most hotly debated component — is known as the individual mandate.
“The idea behind the individual mandate was that … you want as many people in the health insurance market as possible so that everyone’s cost is lower,” Prof. John Blume, law, said. “If there are people that don’t have health insurance, they are the ones that drive the cost of the system.”
However, Blume added that the issue before the court is whether an individual mandate is constitutional — and if the government can force Americans to purchase health insurance.
The question is whether Congress can “require someone to effectively have health insurance or penalize them,” Blume said.
According to Clermont, most professors in the law school expected the Supreme Court to see the act having an economic impact that would be “sufficient to authorize congressional action.”
“The early expectation was based on the notion — even among those of us who believe in a limited federal government — that the Supreme Court’s cases had already gone so far in expanding the Commerce Clause power that there was no logical way to strike down the Health Care Act,” he said.
Prof. Theodore Lowi, government, cited legal precedents that the Court has previously interpreted to give Congress the power to impose national provisions similar to the individual mandate. He referenced Wickard v. Filburn — a 1942 Supreme Court decision that upheld the Roosevelt administration’s policy of restricting the amount of land on which farmers could grow certain produce — and Social Security, which Lowi said is a form of “forced saving.”
Lowi said these “significant precedents” give him hope that the Court will ultimately decide to uphold the legislation. Even the strict conservatives on the Court “have to be supportive of the previous courts,” he said.
Still, Clermont criticized the oral arguments, calling them “sad” and saying they “exposed the politicization of the Court.”
“Mere precedent and logic looked insufficient to deter the Justices’ voting those merits along ideological lines,” he said.
Still, according to Clermont, some professors at the Law School maintain that conservatives’ questioning at the oral arguments was “largely bluster,” and that some conservatives will still vote to uphold the act now that they have had the opportunity to voice their opinions.
On the third day of arguments, the Justices considered whether the individual mandate could be severed from the entire bill, allowing the Court to uphold the constitutionality of the rest of the act while striking down the mandate.
Blume said that both the bill’s defenders and opponents argued that Congress would probably not have passed the legislation without including the individual mandate.
“That’s sort of the economic engine that makes the entire thing run, and without that, it’s not really sustainable,” he said. “The irony about this is [that] twenty years ago, the private mandate was a conservative idea. Now it’s being criticized as being a liberal idea, and that’s not the origin.”
However, Blume added that it would be unprecedented for the Supreme Court to vote down a piece of legislation “this broad and this significant that has such an effect on the national economy.”
“I think it was normally believed going in that almost everyone would vote to uphold it, and after the oral arguments, you saw lots of people saying … ‘It looks like the individual mandate is going to be struck down five to four’ and … ‘We don’t know what’s going to happen to the other parts,’” Blume said. “I’m not sure I see [the Justices] doing that at the end of the day, but I wouldn’t bet my entire IRA on it.”
But having followed the oral arguments closely, Blume said he still believes that “the most likely outcome, although not certainly definite, is that the Supreme Court upholds the law by either a five-to-four or a six-to-three margin.”
The Court is expected to rule on the case in June.