Adele Ferguson: Obamacare discussion could take years

WELL, AFTER TWO years, the tennis ball known as the Patient Protection and Affordable Care Act, aka Obamacare, has finally landed in the U.S. Supreme Court.

We may know in June, we may not know until the end of the year or we may have to wait until 2015 to learn whether it will remain the law of the land in whole or in part.

Obamacare, the linchpin of President Barack Obama’s legacy, was passed on March 23, 2010, as a plan to provide health care and insurance for the 50 million Americans who are uninsured. Without it, we were told, Medicare and Medicaid could not survive. It was passed in such haste and so quickly signed by the president that most Americans had little or no idea what was in it. Once the legal eagles of the land got ahold of it, 26 states, including Washington, joined in a lawsuit questioning its constitutionality. Attorney General Rod McKenna made the decision over the objection of Gov. Chris Gregoire and was upheld in his authority to do so.

SOME KEY LEGAL questions the court must answer:

1. Can Congress compel individuals to buy health insurance or charge them a penalty for not doing it?

2. Can Congress pass such a buy-or-be-penalized law from which there is no escape? Does Obamacare violate the Anti-Injunction Act which does not permit a contract to be binding unless the parties agree to its terms without duress and forestalls lawsuits until payment has been made? Since the penalty phase doesn’t kick in until 2014, the court could delay hearing any lawsuit until then.

3. Can Congress pressure states to expand Medicare coverage by threatening to withhold funds?

4. Can portions of the law be struck down without killing the whole law?

The day after Obamacare passed two years ago, major polls showed that 50.4 percent of Americans were opposed to it. That figure is 50.5 percent today. Other recent polls taken this month show 36 percent in favor and 47 percent in opposition. A panel of lawyers, academics and journalists convened by the American Bar Association predicted that the Supreme Court would uphold the law (Wall Street Journal).

A POLL TAKEN in the last week showed that 75 percent of those polled believed the court’s decision would be politically inspired.

The Wall Street Journal analyzed the records of the nine members of the Supreme Court and picked Clarence Thomas as the only sure no vote on upholding the law, and Ruth Bader Ginsberg, Stephen Breyer and Sonia Sotomayor as sure yeses. Chief Justice John Roberts, Antonin Scalia and Samuel Alito are conservatives but have been liberal in some cases involving what Congress can do. Anthony Kennedy, the swing vote on the court, goes conservative sometimes, liberal others. Elena Kagan, the newest justice, is expected hold the academics’ view that Congress has broad authority over the economy.

The biggest difference of opinion among many Americans is whether to repeal the whole law or only parts of it. Congressional Republicans mostly say dump it. Mitt Romney, the leading contender for the Republican presidential nomination, wrote in a recent editorial column that it was past time to “repeal the program, root and branch.

“The case against Obamacare extends far beyond questions about its constitutionality. President Obama’s program is an unfolding disaster for the American economy, a budget-using entitlement and a dramatic new federal intrusion into our lives.”

I’m with him.

(Adele Ferguson can be reached at P.O.Box 69, Hansville, Wa., 98340.)