How nine Supreme Court justices hold health care and Barack Obama’s future in their hands

Obama staked everything on forcing the law through Congress, against strident opposition. It enshrined, he said as he finally signed it, “reforms that generations of Americans have fought for and marched for and hungered to see”.

But this second anniversary may be its last: it may yet all be undone.

Beginning on March 26, three days of oral arguments will be heard before the Supreme Court regarding the constitutionality of Obamacare. In legal challenges brought by 26 of the states there are four questions being considered.

Can Congress compel individuals to buy health insurance, especially with the threat of a financial penalty if they fail to do so? Can Congress threaten to withhold funding of free basic health services for the poorest and the disabled – the Medicaid programme – to punish states that refuse to implement Obamacare?

Is it too soon for lawsuits to be filed against Obamacare, since it won’t become compulsory until 2014, and no penalties will be exacted for a further year? And if compelling people to buy health insurance – the so-called “individual mandate” – is unconstitutional, can any part of Obamacare be implemented, or will the entire law need to be thrown out?

At the heart of all the complex legal arguments lies the continuing debate in America about the proper role of government.

Opponents ask: if the government can force citizens for their own good to purchase health insurance or pay a penalty, what’s next? Could they be required to purchase green vegetables, green vehicles, or even green tea?

If Washington can force such laws upon America’s protesting states, what was the point of all that fuss throwing off the rule of King George III, 236 years ago?

Where the lines should be drawn between such necessarily conflicting forces as individual liberty and governmental control, and between the power of the federal government and the power of the states, are not simple matters to decide. Ask anyone in Britain what they think of laws handed down from Brussels and you have an idea of it.

Likewise, there is nothing simple about Obamacare. With more than 2,400 pages when originally offered for a vote in Congress in 2010, many legislators admitted to having not read the bill. And many details were still left to be determined.

Despite assurances from then-House Speaker, Nancy Pelosi, a Democrat representing California, that people would understand the bill once it was passed, legislators and the public today are still unclear about what’s in it. And one in seven Americans think wrongly that the law already has been struck down. No wonder confusion reigns.

A series of recent polls have found that the majority of Americans still oppose Obamacare, and most support its repeal, even though they also report that it has not yet had any impact on them.

Though the appointed-for-life justices on the Supreme Court should be blind to the polls and the politics behind the legal arguments, four members of the court are perceived as leaning in a conservative direction, four as being liberals (including both women appointed by Obama), and one is viewed as a swing vote.

These six men and three women will have a voice in determining not only Obama’s long-term legacy, but also his short-term future as the November election looms.

If the individual mandate is found unconstitutional when they pronounce their decision – expected this summer – the health reforms cannot stand as written. And what could have been counted as an accomplishment in Obama’s re-election campaign will instead be seen as a failure for the president.

But if the court decides in favour of the health care law Mitt Romney, the likely Republican nominee, will lose ammunition against the president and Obama will be given a shot in the arm.

And if the justices split their decisions, providing conflicting direction on the four questions considered, or postpone a decision until the compulsion and penalties actually kick in, Americans will all need some strong medicine to survive the headaches to come.

Mark McKinnon, a former Republican strategist who worked on the campaigns of George W Bush and John McCain, is Global Vice Chair of Hill+Knowlton Strategies

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