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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

High Court to Rule on HCR Law as Public Support Rises

Mallory Simon reports at CNN on the likely timetable for the U.S. Supreme Court hearings and their decision on the constitutionality of the Affordable Care Act:

Oral arguments would probably be held in late February or March, with a ruling by June, assuring the blockbuster issue will become the topic of a hot-button political debate in a presidential election year.

As Simon reports, a key issue to be decided by the Supremes is “whether the ‘individual mandate’ section of the law – requiring nearly all Americans to buy health insurance by 2014 or face financial penalties – is an improper exercise of federal authority.”
The Republican hope is that the high court will rule the Act unconstitutional. Simon quotes CNN’s senior legal analyst Jeffrey Toobin, “Many states have challenged this and said, ‘This is different because it requires individuals to buy a private product, that is health insurance,’ and that is something [they feel] the federal government simply does not have the authority to do.”
If the court made such a ruling, would that mean state laws requiring drivers to purchase car insurance would also be in jeopardy? It’s OK for state governments to make such a requirement, but not the federal government?
As for the political consequences of the Supreme Court ruling, Toobin speculates:

“If the law is struck down, if the central achievement of President Obama’s domestic policy is struck down, I think that would be very, very bad for him; the idea that he spent all this time on something that was unconstitutional,” Toobin said. “If he wins, I think it’s a benefit. Gratification by a basically conservative Supreme Court, I think, will be seen as a victory for him and will likely give him some momentum heading into the convention…”

Mallory reports that the White House nonetheless feels confident about the challenge, since three out of four circuit courts have upheld the Affordable Care Act’s constitutionality, including rulings by “highly conservative judges.”
It also appears that the tide of public opinion may be turning in favor of the Act. According to “CNN Poll: Support rises for health insurance mandate” by Bill Mears and Paul Steinhauser,

The public is divided over the idea of requiring all Americans to have health insurance, according to a new national survey. But a CNN/ORC International Poll [conducted 11/11-13] also indicates that support for the proposal, a cornerstone of the 2010 health care reform law, has risen since June.
According to the poll, 52% of Americans favor mandatory health insurance, up from 44% in June. The survey indicates that 47% oppose the health insurance mandate, down from 54% in early summer…”The health insurance mandate has gained most support since June among older Americans and among lower-income Americans,” says CNN Polling Director Keating Holland. “A majority of independents opposed the measure in June, but 52 percent of them now favor it.”

Some might argue that there is little reason to hope that the Supreme Court has gotten any better since Gore v. Bush, in terms of doing of the GOP’s bidding. But it seems to me that there is less cover here for a politicized decision, particularly in light of the courts of appeals rulings. It’s going to take some awfully tortured reasoning by five justices to argue that the coverage requirement is illegal. It could happen, but I’m betting that there is at least one conservative justice who doesn’t want such an embarrassing mockery on his legacy.
In sum, the legal arguments supporting the law’s constitutionality are strong, and the public, though divided, favors the mandate, and increasingly so. Unless the High Court is now hopelessly — and shamelessly — politicized, the law will likely be upheld.

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