Momentous decisions due from Supreme Court on immigration, health care reform

By David C. Savage

Tribune Washington Bureau

Published: Monday, June 25 2012 12:52 a.m. MDT

WASHINGTON (MCT) — The Supreme Court is set this week to decide the politically charged constitutional clashes between President Barack Obama and Republicans over his health-care reform law and his immigration enforcement policy.

By most accounts, the justices must make a stark, clear choice to either endorse Obama's policies — including the mandate for all to buy health insurance — or to strike them down as flatly unconstitutional.

But the justices could rule in unexpected ways that would allow both sides to claim a victory.

Since the spring, when Obama's lawyers were hit with hostile questions at oral arguments, the administration has faced the prospect of a double defeat. It appeared the court's more conservative justices could strike down the entire health-care law and rule Arizona and other states are free to arrest and jail illegal immigrants. Many are predicting just that.

But Chief Justice John G. Roberts Jr. has said he hopes to avoid momentous rulings that turn on a 5-4 vote, and both cases offer the justices other options that have been overlooked.

The health-care case has been fiercely debated as a test of whether Congress can require individuals to buy health insurance under its power to regulate commerce. Opponents have likened it to forcing Americans to buy vegetables.

Lurking in the background is a way to decide the case on tax law grounds. No one can be prosecuted, punished or fined for violating the mandate. In fact, the word "mandate" does not appear in the law. In "practical operation," the administration argued, it's just a tax law.

If the mandate is really just a tax, that would be supported by the Constitution, which says Congress "shall have the power to lay and collect taxes, to provide for the common defense and general welfare."

So, in the end, the justices could agree that the law's required tax payments are constitutional, while also making clear the government does not have broad power to mandate purchases.

Late last year, Judge Brett Kavanaugh of the U.S. Court of Appeals in Washington, an appointee of President George W. Bush and a friend of the chief justice, wrote an opinion arguing for treating the mandate as a tax law, not a regulation of commerce.

During oral arguments in March, the conservative justices sounded highly skeptical of giving the government the power to mandate purchases. But at one point, liberal Justice Sonia Sotomayor asked if it would be constitutional for Congress to assess a tax for health insurance and include an exemption for everyone who had insurance.

"The government might be able to do that," agreed Paul Clement, the lawyer for the Republican states. If so, the liberals asked, why can't Congress require persons to have private insurance or pay a tax penalty?

Upholding the law on tax grounds would be a big win for the president. "It's a neat way out of the box and the most reasonable way to uphold the law," said Washington attorney Andrew Pincus. But it also would give Republicans fodder for arguing the health-care law means new taxes, a claim Obama disputed when the bill was being debated.

There are several other possibilities. The court could uphold the law as a regulation of commerce because health care is unique. Or the justices could strike down the entire law.

If the court were to strike down the mandate while upholding the rest of the law, both sides could claim a victory. The Republicans could say Obama and the Democrats were slapped down for violating the Constitution. The president and his allies could say the insurance reforms and the expansion of Medicaid will provide better health care to millions of Americans.

A ruling in the Arizona immigration case also could leave both sides claiming a win. At issue is whether states can enforce laws against illegal immigrants, or whether this power rests solely with the federal government.

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