Neal Katyal, who as acting US Solicitor General defended the constitutionality of President Barack Obama’s flagship health reform in lower courts, has warned in an interview with AFP of “grave” and “profound” consequences if the Supreme Court accepts a challenge to the law.
Q:) Experts say that this Supreme Court challenge is historic. Why so?
A:) The case that’s coming before the Supreme Court which challenges Congress’s Affordable Care Act is undoubtedly a significant case. It’s rare for a president’s signature initiative to come before the Supreme Court and be challenged as unconstitutional.
Q:) The requirement for each individual to have health insurance coverage is central to the president’s reform. Can the law survive without that measure?
A:) It’s a hard thing to imagine that the law, that all of the rest of the law would survive if the individual mandate is struck down, because Congress when they passed the Affordable Care Act, said: ‘We want to get rid of discrimination against those who have pre-existing conditions to make sure that insurers are going to insure everyone at a fair cost’. And if you get rid of the provision that says everyone has to carry insurance, then you’re really effectively undoing the logic of the ban on discrimination of those with pre-existing conditions.
Q:) In what way could the individual mandate by judged “unconstitutional”?
A:) The challengers to the reform say that never before has the government forced people to buy a product. We’re not forcing you to buy a product. Health care is something all Americans consume, and you don’t know when you’re going to consume it. You could get struck by a bus, you could have a heart attack and the like. And if you don’t have health insurance, then you show up at the emergency room. The doctors are under orders to treat you — as any Western, any civilized society would do. And who pays for that? Well, ordinary Americans pay for that. They’re the ones who have to pick up the tab for those who don’t have insurance. We are not regulating what people buy, we’re regulating how people finance it.
Q:) What is at stake in this hearing?
A:) If the Supreme Court struck this down, I think that it wouldn’t just be about health care. It would be the Supreme Court saying: ‘Look, we’ve got the power to really take decisions, move them off of the table of the American people, even in a democracy. And so it could imperil a number of reforms in the New Deal that are designed to help people against big corporations and against, indeed, big governments. The challengers are saying that this law is unconstitutional, which means even if 95 percent of Americans want this law, they can’t have it. And that’s a really profound thing for an unelected court to say.
Q:) What are the possible outcomes?
A:) The two main outcomes that one can predict — the Supreme Court strikes down the individual mandate as unconstitutional because it’s unprecedented or it upholds it and says it is part of Congress power over commerce and over taxation. The latter is far more likely because it is such a grave thing for unelected judges to take a decision of such a magnitude for American people. I expect the Supreme Court’s ruling at the end of its current term, June 30.
I wouldn’t be surprised if everyone else was surprised in this case, and the court didn’t reach a standard 5-to-4 judgment with the five Republican justices — those nominated by Republican presidents on one side, and the four nominated by Democratic presidents on the other.
Q:) Why is there such visceral opposition to this law among Americans?
A:) Whenever you have landmark legislation, people are afraid of change. That’s not surprising. And this is something that is going to dramatically change insurance markets, health care markets, and you know, there’s a lot of people who can be worried about that and who, if they don’t like the law, should vote against those who voted for it. Vote against President Obama, or vote against the members of Congress. What I think is not appropriate is to take that policy debate and put it in front of the Supreme Court of the United States. If they don’t like the law, there’s an easy vote and that’s in November.
Photo of Neal Katyal by Center for American Progress via Flickr
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