When Americans have problems, they get a lawyer and go to court. Everyone is sued, or, at least, everyone threatens to sue everyone, and often about the smallest of things.
The American system of separation of powers between the executive, legislative and judicial powers makes it unique in comparison to Europe. The result is that many of the country’s crucial issues, such as racial segregation in schools, the right for a woman to have an abortion or how election campaigns should be financed, are not finally determined by the president or Congress, but through the judicial process, from the lower bodies up to the nine members the Supreme Court.
Now, a momentous legal and constitutional battle looms. It is about President Obama’s healthcare reform that was approved by Congress in March last year. It’s a battle not easily understood by Europeans where every citizen is guaranteed healthcare. They say: of course, every American should be entitled to health care and health insurance, without exceptions. They also wonder about the role of the judiciary and the Supreme Court and the central position of the U.S. Constitution in the American political system.
“Obamacare,” as Republicans and reform opponents condescendingly call the new law, has certainly divided America. About as many Americans support the reform as oppose it, at least if you talk about the new law in its entirety. However, some of it went into force at the start of this year and many of these measures have proved popular – lower drug costs for retirees, tax breaks for small businesses seeking health insurance for their employees, children up to age 26 can now remain insured under their parents’ health insurance, no child can no longer be denied health insurance because they already sick – so called pre-existing condition, and no person can get his/her insurance revoked if falling ill.
The new Republican majority in the House of Representatives has already voted to scrap the entire healthcare law. The Republicans in the Senate tried the same thing, but the Democratic majority prevented that from happening. Obama and the Democrats have said they are willing to take a look at individual sections of the new health care law to see if these can be improved, but they will not touch the whole law as such. For the moment, at least, it seems that the fight over the healthcare law in Congress has reached a stalemate
It is here, where the legislative process seemed to have reached an impasse, that that the focus has turned to the courts. In a series of legal maneuvers opponents of the healthcare law now seek to have it declared unconstitutional.
Twenty six attorney generals – all of them Republicans — are suing the Obama administration. Their goal is for the U.S. Supreme Court to find the new law unconstitutional. In addition, four federal judges in the states of Virginia, Michigan and Florida have expressed their opinion on the healthcare law. Two of them, both Democrats, have said that the law is consistent with the Constitution. The other two, both Republicans, had objections and one said that the entire law is unconstitutional.
For the opponents, the central argument has focused on the fact that, starting in 2014, everyone must buy health insurance. Congress does not have the power to order such a thing. No one can be forced to do this, they argue. But proponents of the new law say that it is no different from the fact that people have to buy car insurance or home insurance. Congress has this power. Choosing not to participate will make the system unfair and eventually so expensive that nobody will be able to afford insurance.
Much of the present debate is now focused on the date when the healthcare law will reach the Supreme Court. That it will reach the highest court seems a foregone conclusion, although no one knows when that will happen . One year? Two years?
Meanwhile, legal experts on all sides are lining up, pro and con. In recent articles in the New York Times and the New York Review of Books, Harvard law professor, Laurence Tribe, and Georgetown University law professor, David Cole, both regarded as liberals, are surprisingly optimistic about the Supreme Court’s future decision on the healthcare law. Both argue that the law is based on well-established praxis and that there are enough precedents for the Nine on the Court, in spite of their ideological differences, to uphold the healthcare law and thereby declare it consistent with the U.S. Constitution.
We’ll see if they are right when the time comes. If so, it will be a decisive step for America in its gradual transition to a country where everyone has the right to health insurance. If not, it’s back to square one.