How Broccoli (And The US Supreme Court) Could Decide The Presidency

Posted by on Jun 20, 2012 | Comments Off on How Broccoli (And The US Supreme Court) Could Decide The Presidency

For all the talk in this US election year of the potentially crucial votes of women, Latinos, the middle class and other portions of the population, this presidential contest could come down to just a few votes in the Supreme Court of the United States (SCOTUS).

Within days, the highest court in America is expected to deliver its opinion in the six cases relating to the Patient Care and Affordable Care Act of 2010 – so-called “Obamacare” – which it heard in late March.

If the majority of the nine SCOTUS justices rule the laws unconstitutional in part or in full, the single-biggest achievement of Barack Obama’s presidency and the most far-reaching social reform in almost half a century will be in tatters.

Mr Obama spent over a year pushing for healthcare reform when many said his focus should have been on the economy and jobs. If his signature achievement comes back from the court marked “F” he will be wide open to the almost certainly fatal claim of having a “failed presidency”.

The supreme court justices, who are nominated by the president but confirmed by the US Senate, mostly (but by no means not always) interpret the constitution and vote in a predictable manner based on their earlier opinions and known ideologies. Justice Antonin Scalia (Reagan appointee) and Justice Clarence Thomas (George HW Bush) are solid conservatives, Justice Ruth Bader Ginsberg and Justice Stephen Breyer (Clinton appointees) are progressives, Chief Justice John Roberts and Justice Samuel Alito (George W Bush appointees) are conservatives and Justice Sonia Sotomayor and Justice Elena Kagan (Obama appointees) are progressive.

That’s a broadly partisan split of four and four, and this is where Justice Anthony Kennedy could be the decider-in-chief for “Obamacare” and ultimately perhaps Mr Obama’s presidency.

Appointed by Ronald Reagan in 1988, Justice Kennedy was a reliable conservative vote until the end of the Rehnquist court in 2005 but since the retirement of another Reagan appointee Sandra Day O’Connor the following year, Justice Kennedy has found himself in the role of “the swing vote” and has more frequently broken with conservatives.

The least popular and perhaps least-constitutional part of “Obamacare” is the individual mandate, which compels Americans to get health insurance or face a fine. The fundamental economics are such that the other more popular healthcare reforms, including no denial of coverage for pre-existing conditions and no ceiling on payouts could prove to be unaffordable if healthy people opt-out of insurance.

The consensus seems to be that there is a reasonable chance the mandate will be struck down, the question then becomes whether the court or the Obama administration can keep the laws standing without its economic keystone knowing Congress won’t want to touch the issue again, perhaps for decades.

In probing the constitutionality on the mandate, there was a surprising lot of talk in the court about broccoli. Can you force people to buy something just because it might be good for them, and if so, could you then force people to buy broccoli or gym memberships?

The solicitor-general Donald Verrilli argued that unlike broccoli, which people can choose not to eat and still live well, everyone needs healthcare sooner or later and the uninsured end up getting treatment paid for, in part, by everyone, through higher taxes.

One can assume by the nature of his questioning that conservative Justice Scalia favours neither broccoli, gyms nor mandated health insurance, but court-watchers saw greater sympathy from Justice Kennedy, and a desire to sway Chief Justice Roberts to that view (the Roberts opinion on broccoli, while as yet unknown, could be crucial).

Chief Justice Roberts would potentially give a decisive 6-3 vote in favour of the laws, which some analysts say he would prefer to avoid political fallout, or 5-4 if Justice Kennedy is onside but the Chief can’t stomach the broccoli.

But neither is a sure thing, after all, Justice Kennedy remains a Reagan conservative.

While political considerations are not supposed to weigh on the justices, they must to some extent. It is worth recalling as well that five of the current nine SCOTUS justices were on the Rehnquist court that effectively determined the presidency in the case of Bush v. Gore in December 2000, Justices Scalia, Thomas and Kennedy finding in favour of ending the Florida recount (giving the election to Mr Bush), while Justice Breyer and Ginsberg wanted all the votes counted (which would have seen Al Gore become president).

Anthony Kennedy, his eight fellow justices, and perhaps broccoli, could be about to determine the fate of another presidency and indeed the healthcare of millions of Americans.



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