 |
| The justices of
the U.S. Supreme Court gather for a group portrait in the East
Conference Room at the Supreme Court Building in Washington, October 8,
2010. Seated from left to right in front row are: Associate Justice
Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John
G. Roberts, Associate Justice Anthony M. Kennedy, Associate Justice
Ruth Bader Ginsburg. Standing from left to right in back row are:
Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer,
Associate Justice Samuel Alito Jr., and Associate Justice Elena Kagan. |
The legal fate of President Barack Obama's signature
healthcare law will likely come down to two Republican appointees on the
U.S. Supreme Court -- Chief Justice John Roberts and Justice Anthony
Kennedy.
That would be a familiar role for Kennedy, a moderate conservative who
often has cast the decisive vote on the most contentious issues before
the nine-member high court divided between conservative and liberal
factions.
A Supreme Court ruling on the healthcare law, adopted by a
Democratic-controlled Congress after a bruising political battle, could
be a defining moment for Roberts, who was named chief justice in 2005 by
Republican President George W. Bush.
"Given the deep ideological divisions over the case and the lack of
precedent clearly on point, the court could easily rule either way,"
Ilya Somin, associate law professor at George Mason University, wrote in
a recent blog post.
U.S. appeals courts have issued conflicting rulings on whether Congress
exceeded its power under the Constitution when, in adopting the
healthcare law in 2010, it required that Americans buy insurance or face
a penalty.
The latest decision, handed down on Friday from an Atlanta-based appeals
court, struck down that individual mandate provision, making it more
likely the Supreme Court will get involved.
University of Richmond assistant law professor Kevin Walsh said the
Supreme Court seemed virtually certain to decide the issue by the end of
June next year. That would mean a ruling before the U.S. elections in
November 2012, with the law seen as a major political issue.
Obama has championed the individual mandate as a major accomplishment of
his presidency and as a way to try to slow the soaring costs of
healthcare while expanding coverage to more than 30 million Americans
without it.
"If the Supreme Court follows existing precedent, existing law, it
should be upheld without a problem," Obama said in Minnesota during a
town hall discussion. "If the Supreme Court does not follow existing law
and precedent, then we'll have to manage that when it happens."
REPUBLICANS CRITICAL
Republican presidential candidates have strongly criticized the law as costly and evidence of intrusive government power.
Legal experts said the court's four liberals, all appointees of
Democratic presidents, were likely to uphold the individual mandate.
Justices Stephen Breyer and Ruth Bader Ginsburg were appointed by
President Bill Clinton while Obama named Justices Sonia Sotomayor and
Elena Kagan.
The experts said Justice Clarence Thomas was expected to vote to strike
down the mandate, based on his past opinions, and could be joined by
fellow conservatives, Justices Antonin Scalia and Samuel Alito. All
three were named by Republican presidents.
That would leave Roberts, a conservative who on occasion has refused to
join far-right positions taken by Scalia and Thomas, and Kennedy to
control the outcome.
Kevin Russell, a Washington lawyer who argues before the Supreme Court
and who has followed the healthcare law, said Kennedy has been one of
the justices most protective of state power against federal government
encroachment.
"If he views the mandate as invading an area of traditional state
authority, I think he may be one of the least likely justices to vote to
uphold it," Russell said.
Orin Kerr, a George Washington University law professor, predicted
Roberts and Kennedy both would likely end up voting to uphold the
individual insurance mandate.
He cited an opinion by Kennedy in 1995 and the expansive view that
Roberts recently supported of the power of Congress under the
Constitution to adopt laws necessary and proper.
Sources: http://www.reuters.com/article/2011/08/15/us-usa-healthcare-analysis-idUSTRE77E5A820110815