Since the vote to repeal The Patient Protection and Affordable Care Act – what is derisively called “Obamacare” – was lost in a U.S. Senate vote on January 12, adversaries of the legislation are aiming their cannons at specific parts of the law.
It is important to note that Obamacare as a whole will likely face another attack in the form of a repeal bill after the 2012 elections, when Republicans have a chance to take over the Senate. Twenty-three Democratic senators are up for re-election, while only 10 Republicans face the possible loss of their incumbency. With the current Senate count at 51 Democrats and 47 Republicans, Republicans only need four seats to gain the majority; meaning, Obamacare is in political jeopardy for most of the near term.
Until a possible Senate takeover is secure, Obamacare’s opposition is attacking “The Act” in the legal system. The most disputed aspect of the law being, the individual mandate: the clause that requires most American citizens to purchase minimum-coverage health insurance. If not, they have to pay a penalty: 2.5 percent of their income or a fixed fee of $695.
Five district court decisions have been handed down in regards to the constitutionality of the disputed mandate. Three judges upheld it; two denounced it.
Recently the Brookings Institution, a Washington, DC based think tank, held a debate Wednesday that featured four lawyers – what the moderator called the “A-team” surrounding this issue – voicing their opinions on the constitutionality of the individual mandate.
“The individual mandate violates the most fundamental constitutional principles, violates sanctitudes of established case law and is fundamentally different from any law congress has ever enacted to regulate commerce,” said David Rivkin, partner at Baker Hostetler LLP, in his opening statement, opposing the individual mandate.
Walter Dellinger, chair of the Appellate Practice at O’Melveny and Myers, argued to the contrary.
“This case was decided in 1824, when Chief Justice Marshall wrote that the Commerce Clause converged upon congress the ability to regulate that commerce which concerns more states than one,” said Dellinger. “The notion that a regulation requiring the purchase of insurance that is central to a comprehensive legislative reform of 1/6 of the national economy is somehow beyond the power of the national congress is an astonishing proposition.”
Americans, too, remain split on this issue. A recent survey, conducted by Harris Interactive, found that 30 percent of Americans believe the individual mandate to be unconstitutional, 20 percent of Americans believe it is constitutional and another 30 percent are not sure.
Even some moderate Democrats are hostile to the individual mandate.
Another survey, conducted to 800 voters between Feb. 17 and Feb. 21 asked if voters favored or opposed repeal of The Patient Protection and Affordable Care Act. The survey found another split: 51 percent of people surveyed said they favored repeal, while 41 said they do not.
Because of the mixed messages sent by the court decisions and the swirling of opinions of both sides of the debate, this matter will likely–and many think it will have to be–settled by a Supreme Court decision.
President Obama has even endorsed legislation that would give states the option to dismiss some of the federal requirements, including the individual mandate, by 2014. He has begun meeting with governors at the White House to ensure that they can have flexibility when it comes to health care in their own states.
This gesture by Obama shows that even he is aware of the political reality at stake and the growing debate over the constitutionality of the individual mandate is evidence that even the opposition to The Patient Protection and Affordable Care Act is continuing to evolve.
