The United States Supreme Court today began three days of hearings on a challenge to the constitutionality of the Patient Protection and Affordable Care Act (PPACA), also known as Obamacare.
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“The Supreme Court was uninterested in the argument today that the penalties imposed on those who fail to purchase health insurance from private insurance providers – the ‘individual mandate’ – amount to a tax. The Court had to cover this base, because several lower courts raised it. But its disinterest in this argument is a promising sign that the Court intends to reach the merits of the argument that the individual mandate is unconstitutional under the Commerce Clause of the U.S. Constitution.
“Tomorrow’s oral argument on the individual mandate should be much more compelling.”
“One of the most interesting lines of questioning at the Supreme Court today concerned the issue of whether someone who did not buy insurance and paid the penalty would be in violation of federal law. While President Obama’s Solicitor General said Americans who did so would not be in violation of the law, his answer was very unsure. Did the government not consider that by dodging the individual mandate, millions of Americans could technically become criminals, or that breaking this law could be considered a violation of parole or probation?
“Once again, today illustrated how unsure the government is of nearly every argument they’ve made in defense of the president’s health care law, and how much of an unmitigated mess this law creates for the country.”
“I predict the Court will strike down the whole law 5–4 because the individual mandate is contrary to the fundamental federalism framework of the U.S. Constitution. Under the Constitution, only the states have the police power that would authorize the individual mandate policy, and Justice Kennedy himself has been the most zealous in protecting the power of the states against federal takeover. Moreover, even Obama’s lawyers have been arguing in federal courts across the country that without the mandate Obamacare is unworkable.
“With no severability clause in the legislation – due to overconfidence by the liberal/left, and under the legal standard that applies in the absence of such a clause – the Court will strike down the whole law as unworkable without the mandate. That’s a good thing, because under the free-market, patient-power health care policies supported by conservatives, patients and working people would have maximum power, choice, and control over their own health care. Market competition would be effective in controlling costs, and a health care safety net would ensure that no one would suffer without essential health care.”
“Justice Alito captured the essence of the Obamacare legal defense when he pointed out the semantic acrobatics that President Obama’s lawyer, Donald Verrilli, was undertaking: ‘General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax.’
“It is a tax. It’s not a tax. The president’s lawyers are having to adopt different positions on different days in order to persuade the Court that Obamacare is constitutional. There’s good reason to believe that the justices won’t let that fly.”
"This has always been about how far the government can go in controlling people's personal activities or their economic decisions. The Wickard case is problematic on economic activity and the stream of commerce and home grown wheat. The Social Security mandate created another sticking point because it got handled as a tax. The Supreme Court will have to bite down on expansion of the Commerce Clause expansion if the health care bill is to be nullified.
"One thing people need to understand is that Justice Thomas will go right at the Commerce Clause, but Justice Scalia and others on the conservative wing will be uncomfortable with an aggressive position on a legislative action — not considered kosher for originalist-minimalist, separation-of-powers judges to get legislative. The left wingers will find no problems, so the decision lies in the hearts of the conservatives.
"There won’t be any new jurisprudential ground broken. This dispute has been roiling for a long time with little to change except the magnitude of this health care bill and its enormously intrusive nature."
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