The American Revolution was built on government of the people for the people by the people. Its latest, largest initiative — Barack Obama’s healthcare act, now universally known as Obamacare — now hinges on a glass of water. It’s the glass of water that US solicitor-general Don Verrilli reached for in the opening moments of his address to the nine Supreme Court justices, hearing the case as to whether the entire 2000-plus page law is constitutional or not.

Verrilli, seen by many as a smart, with-it guy, has been almost universally panned for his performance in presenting the three days of oral argument before the court — an unprecedented amount of time for oral argument, after which there will be several months of deliberations by the nine esteemed justices — or eight esteemed justices, and Clarence Thomas. Verrilli ummed and aahed, cleared his throat, and got off to a poor start.

Whether it was simply a wobble, or extreme fatigue, Verrilli soon recovered and gave a reasonable enough account of the case. But his wobble gave the impression that the government was shaky in its enthusiasm for the healthcare law, and uncertain about its constitutionality. His initial address was followed by harsh questioning from the bench, by the conservative judges. By day two of the proceedings, American liberals were in despair over the likely fate of the central structural achievement of the Obama administration.

The case has been brought by the governments of 26 US states, acting as one, to try and have the core feature of Obama’s healthcare plan — the individual mandate — declared unconstitutional. The individual mandate, based on schemes such as that pioneered by Mitt Romney in Massachusetts, is a way of making healthcare coverage universal, by compelling everyone to get private health insurance, or face a fine if they do not.

The mandate had been proposed by right-wing think tank The Heritage Foundation in the early 1990s. At that point it was decried by liberal and left groups as a way of shovelling a new batch of customers towards the huge over-priced health insurance companies. In the early ’90s, with the Clintons proposing a public option — i.e. a public healthcare provider competing directly with private insurance companies — the mandate was the conservative alternative.

But the Clintons’ program was defeated, and when Hillary came back to launch her own bid for President, she advocated an individual mandate, as a form of healthcare that would cut with the American political grain, while Obama argued that such a move would be a free gift to the insurers. By year two of the Obama administration, it was clear that a majority for a “public option” could not be guaranteed — even with a Democratic majority in both houses — and so Obama fell back to the mandate he had previously scorned.

The official argument for going with the mandate was that it would include a whole series of health insurance “exchanges” — effectively websites that would allow people to compare different health schemes. Importantly, the comprehensive law would allow insurers to offer interstate health plans — at the moment the triumphant Ayn Randian free-market blah blah system restricts interstate insurance sales — and would also ensure that insurers plough 80% of their revenues back into actual insurance payouts.

The argument is that this would give insurers new markets, that it would enforce price wars that offered uninsured people cheap insurance, without the fat of extra costs being added on. Whether that would be the case or not remains to be seen — but if it didn’t there would be a political fallback. People’s anger would be directed to the insurance companies, and the government could then step in and push further changes to the system, either squeezing Big Health or offering a public alternative.

Politically, that is certainly what the Right fears. It’s one thing to deny people health coverage, and rely on the mind-bendingly powerful Right propaganda to suggest that having no good care of your physical being is an expression of “freedom”. But once they have that care — and that includes a ban on insurers denying people (including children) pre-existing coverage — it’s going to be a lot harder to remove it from them. The political intent of the healthcare bill was to create a whole class of people who had a lot to lose from it being repealed.

That hasn’t worked out exactly as planned — the Obama healthcare plan, and especially the mandate, has proven somewhat unpopular, for reasons I’ll go into later. But the lawsuit has proceeded. The argument against the healthcare plan is based on two major inter-related points — one, that the federal government has no enumerated power in the constitution to impose a compulsory purchase on all US citizens, and 2) that it exceeds its powers with regard to the states by obliging them to apply a whole series of mandatory healthcare programs, on pain of being denied federal funds.

By contrast, the federal government is arguing back two points — that the healthcare mandate is permissible under the commerce clause of the constitution — giving the federal government powers “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes”. How this clause has been applied has varied, but in the past century it has been used to extend federal powers over areas that have a universal aspect — the regulation of child labour, for example.

The second claim is based on an earlier precedent, enshrined in the Anti Tax-Injunction Act, which says that no one can challenge a tax as unconstitutional until it has actually been imposed — and since that part of the healthcare bill won’t kick into until 2015, the healthcare bill should not be considered by the court until then.

The challenge made on the commerce clause grounds is that the mandate is creating interstate commerce — by making everyone buy insurance — in order to regulate it, thus making a mockery of the notion that the federal government should be limited by the notion of non-enumerated (i.e. non-specified) powers. They’re arguing that the charges aren’t a tax, in order to be able to bring the case forward.

No surprise that both sides have been furiously arguing the rightness of their position. Liberals call the commerce clause challenge — that it would give the presidency unlimited powers to regulate daily life — ludicrous, ignoring the universal nature of healthcare, and the fact that it’s a de facto tax, imposed in the same way that federal income tax is applied. Conservatives were less confident that the law would be struck down, but convinced that it was a Hitler-like extension of power into people’s everyday lives.

The conservatives are now feeling a little more confident after the three days of argument, given the ferocious questioning to which the government’s representative was subject. Previously it had been presumed that the government would win 6-3, 7-2 or even 8-1, with justices Alito, Scalia and Thomas being the respective final hold-outs — and justices Kennedy and Roberts the swing votes added to the four liberal justices.Despite well-founded suspicions about the political nature of the court — especially since Bush versus Gore of 2000 — few see the five conservative justices as being likely to simply do the Republican Party’s bidding. The political-legal question ostensibly comes down to that of how “hard-wired” one believes to be specific clauses of the constitution — as a document limiting federal government power. From the liberal side, it is a question of what power the constitution enables the federal government to have, in order to govern effectively.

The conservatives will say that the document arose from a revolution against extended government power; the liberals will say that it was the second such documents created — after the earlier articles of Confederation had failed — and was explicitly designed to give the federal government sufficient power to govern effectively.

From the point of view of anyone not based in a rights-based republic, the whole process is hair-raising. The easiest thing for a liberal or leftist to say would be that the process descends to the level of farcical seance, poking every phrase and comma of a short founding document, in order to run society in the 21st century. But American liberals have relied so extensively on legal and constitutional measures to advance causes — from civil rights, to limiting police powers to abortion — that they can hardly complain about the reverse process.

They will, and they do, just as conservatives will hail any victory as a triumph for the republic — and damn any future losses as the result of an activist Supreme Court. The court itself, most commentators say, will tread very carefully on this one — it will be much easier for them to leave the law as it is, arguing that it can be abolished by the will of the people in future, than to strike down 2000-plus pages of legislation — either in part or in toto — and put a huge debate about the judiciary versus the other wings of government front and centre.

Weirdly, any result is likely to have either paradoxical effects, or none at all, on the election. The law remains unpopular, due to the ugly, compromised kludge that it became, after 18 months of negotiation — for a significant number of people things get slightly worse before they get somewhat better. It is not providing healthcare, but compelling it, driving people towards price-gouging insurance companies. Obama might look reproved by its striking-down — but he might also be liberated from it. He has other solid things to campaign on — saving GM, killing bin Laden, upward trends in recovery — and to campaign against, all made clearer with healthcare out of the equation.

Bizarrely, if the court upholds the law, the public is then reminded of who gave it to them — and the Obama strategy of barely mentioning it at all is blown away. Or it may have weirder effects — driving some wayward voters back to Obama, after major power structures have once again come down hard on even mild reform, driving other independents away, because the President did something “wrong”. Who knows? Only the nine people on the bench that, until July, on this issue, the government is by, of and for.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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