The legal battle about the constitutionality of the Affordable Care Act, which is commonly called “Obamacare,” has reached the Supreme Court. An article in the Washington Post by Robert Barnes leads with the Obama administration telling the Supreme Court, “Congress was ‘well within’ its constitutional powers when it decided that the way to resolve a crisis in health-care costs and coverage was to mandate that Americans obtain insurance or pay a fine…”  Lower courts have been just about evenly “…split on whether the Constitution gives Congress the power to require individuals to buy something they may not necessarily want.” Two judges wrote, “We are unable to conceive of any product whose purchase Congress could not mandate…” if the individual mandate is ruled constitutional.

There are many who do not believe the Supreme Court will actually rule on that issue at this time of high political drama, and the Obama administration is maneuvering separately to disarm some of the arguments against the law. Robert J. Samuelson wrote in the Washington Post that Health and Human Services secretary Kathleen Sebilius is doing what she can to make Obamacare disappear as a liability for the President. She has decided to delegate the final decision on defining “essential health benefits” for minimum health insurance coverage to the states. That decision is crucial to answering the question of how 35 million Americans who are currently uninsured will receive subsidized health insurance by 2016. Millions more who receive coverage in individual and small group insurance markets also will be affected.

Sebelius has disarmed the criticism that Obamacare imposes “one-size-fits-all” by requiring each state to define “essential health benefits.” However, the question of how broad the coverage that is required has been scattered to 51 debates. The two goals will obviously be broad and affordable coverage, and those two goals are in direct conflict. Broader coverage will increase the cost to government to pay for the subsidies. Many expect that employers could begin to freeze raises and cost of living increases to cover their costs for the new health insurance benefits that will be required.

The states apparently can base their decision on ten existing plans. “The choices include, for example, ‘the largest plan by enrollment in any of the three largest small group insurance products in the state’s small market group’.” I have no idea what that means but hopefully the 51 states have a better understanding of that and the other nine possibilities. The “good news” is that states that can’t figure out what to do can be granted waivers beginning in 2017, and perhaps that would be the best approach.

The best article I’ve read to try to understand this issue is titled “Dissecting the Health Care Case, Election-year debate makes this term a mirror of the New Deal era” by Mark Walsh. I suggest you clink on the link to this article and read the second page. My quick summary is that the Court might (or is likely to) rule that the current challenge is premature. “Under this view, the law’s individual mandate may not be challenged until individuals who refuse to buy health insurance have to pay a penalty.” One Court of Appeals threw out a challenge to the health care law on that basis. The Supreme Court did not take up that ruling, but “…it did accept the Obama administration’s suggestion to consider the Anti-Injunction Act issue.”  The issue will be argued for one hour on March 26.

There are strong opinions on both sides of the issues, and I believe the key is whether Congress can mandate that individuals must buy something. However, as the article describes, there are politics involved beyond what is constitutional. The Supreme Court ruled some of Franklin Delano Roosevelt’s New Deal laws unconstitutional. My personal favorite was a ruling in Schechter Poultry Corp v. United States in which the Court ruled that (simplistically) the poultry processor had not intentionally sold unhealthy chickens. However, the Court began to uphold his programs in 1937 to stave off FDR’s court packing plan to gain friendly rulings.

I believe the best thing government can do is to get out of the way, and laws that sound as if they are based on good intentions are generally destructive. Obamacare has already distracted the country from the most important issue, and that is how to create a better economy that will employ more people. I also believe the law has already been detrimental in discouraging entrepreneurs from having the courage to launch new businesses. I know I would question my sanity if I decided to begin a new business with the uncertainty of both Obamacare and Dodd-Frank standing ready to crush it with both costs and bureaucracy.

Back to the likely outcome of the Supreme Court and Obamacare, Professor Lucas A. Powe Jr., a Supreme Court historian, writes, “I cannot imagine that John Roberts intends to go down in history as the chief justice who struck down one of the most significant statues in American history.” My prediction is that the Supreme Court will avoid such a contentious ruling by accepting that the current challenges are premature. The Anti-Injunction Act requires that a challenge is not allowed until “…individuals who refuse to buy the health insurance have to pay a penalty.”

What does all of this mean? Elections matter and the American people elected a President and dominantly Liberal Congress based on anger and fear in 2008. Laws that were intended to “protect and serve” were passed and signed, and now we must deal with the consequences.