From the Publisher / Arnold G. York Obamacare: To be

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or not to be?

Today, the United States Supreme Court is hearing oral arguments on the Obama health care bill, or Obamacare, if you prefer. Picketers are outside the court carrying a variety of signs, the networks are interviewing anything that can speak, and it appears as if a large number of people have decided they want to try and get on national television. In other words, it’s a circus, and it all looks a bit like a movie set for a later-day version of the Scopes monkey trial. It has everything but a band playing “Give Me That Old-Time Religion.”

The question is: Just what does all this mean, and do the theatrics impact the outcome? Most justices would have you believe that it’s all just decided on the law. Somehow we’re all to believe that the justices don’t read newspapers and watch television and that an upcoming presidential election is not a factor. I don’t believe that for a moment, but the reality may be more complicated than it seems.

Initially, I thought that it was the Republicans on the court who wanted to hear and decide this before the election. But I’ve been told by some very knowledgeable people that the government probably could have stalled this past the election, but chose not to. So it would seem that both Democrats and Republicans wanted to get this heard and decided before the election. Apparently both have made a calculation that they have something to gain by moving ahead quickly, and all we can say is that one side or the other is wrong.

If the court strikes down Obamacare as unconstitutional, will that help or hurt the president’s reelection chances? That probably will depend on the court vote. For example, if the five Republicans on the court vote to strike it down, and the four Democrats vote to uphold it, it most certainly will figure in the election. If, on the other hand, they uphold the plan, then I’m guessing it will have a lot less political impact.

I have a bit of a different take on this case. After listening to a number of very bright constitutional lawyers, I kind of have a sense that the court could reasonably go either way on this case. There seems to be ample precedent going both ways. So, the question becomes, does the court want to jump into the middle of this, and there are many pros and cons. Remember, this is a statute that was passed by Congress and signed by the president. It was a fairly middle-of-the-road compromise to push us toward an Americanized version of nationalized health, but to let it be done through private insurance. This isn’t the government-run, single-payer system—sort of like Medicare for all paid for by taxes—which, strangely enough, would have been constitutional.

It’s the compromise that might have made it unconstitutional. The government was trying to fix three problems. First, the millions of people, particularly younger people, who are uninsured. Second, all of the people with pre-existing conditions who are practically uninsurable. Lastly, we’re all paying for those uninsured every time we get a $5,000 emergency room bill, which is a very inefficient way to spread the costs. In order for the system to work financially, you have to include the healthy as well as the sick, otherwise it simply doesn’t pencil, and that’s why the need to require that everyone buy insurance.

Yet this case could end up being an albatross around the Supreme Court’s neck.

Currently, most of our political institutions are deeply unpopular. The president’s approval rating seems to bounce between 46% to 49%. One day it hit 50%, and that was big news. The Congress approval rating is at an all-time low, with only 11.8%, according to the latest polls. About the only institution that is still held in high regard is the U.S. Supreme Court, and that I think is in grave danger. A 5-4 decision striking down Obamacare will send one half the country into a rage and the reputation of the Supreme Court, I predict, will take years to recover. Most Americans will begin to see the court as just another political body, no different than the president or Congress, but unelected and serving for life, and fodder for all the usual attacks and late night TV jokes. It’s a tough call for them.

The country gave them a pass on Bush vs. Gore because we all knew that someone had to win and the country couldn’t stay in suspended animation indefinitely, and someone had to decide. I don’t think they’ll get the same deference if they strike down Obamacare 5-4. Of course, if they can pick one or two of the Democrats on the court, that changes it completely. It’s going to be interesting to watch.