Obamacare Goes Before Supreme Court This Week

Over at the Foundry (H/T: Transfigurations), Mike Brownfield has a good summary of the issues involved in the historic three-day session of oral arguments starting today in the United States Supreme Court over the constitutionality of Obamacare. (The arguments cannot be watched live, but CSPAN will report them after they finish each day -- see also the link below to a recording and transcript of each day's arguments). Here is his article, with a few annotations as needed:

Rare is the occasion when the nine justices of the U.S. Supreme Court gather to hear three days of arguments, and rarer still is when it is for a case like Obamacare — one that cuts to the core of the Constitution and whose outcome could fundamentally alter the role of the federal government and its power over the people. But today the Court will do just that when it open its doors and begins weighing the arguments on the constitutionality of President Barack Obama’s seminal health care law. 

Were the American people to vote on the issue, they would fall decidedly against Obamacare, as recent polls have shown. But for the Court, the decision is not as cut and dried as an up or down vote, but one that involves the interplay of a series of issues raised by those who are challenging Obamacare — more than half the States of the Union and a collection of interested organizations and private parties — and those brought by the Obama Administration, which is defending the law. And they come to the Supreme Court after conflicting appellate court rulings which have left undecided the question of whether Obamacare is permissible under the Constitution. 

The central issue before the Court is whether Congress has the power under the Commerce Clause and the Necessary and Proper Clause to impose the individual mandate on the American people, forcing them to buy health insurance or pay a penalty. If the Court holds that Congress was outside the bounds of its authority, it can strike down the individual mandate, leaving the justices to then decide whether all or part of Obamacare should fall along with it. 

If the Court upholds the mandate, America will be in the same position it finds itself today — facing a law that vests untold power and resources in the hands of the federal government, that transfers health care decision making from individuals to unelected bureaucrats, and that increases costs while decreasing access. In short, America’s health care crisis will get worse, not better, and future generations will be left paying the tab. What’s more, if the Court allows the individual mandate to stand, it will unhook Congress from its Constitutional leash, empowering it to regulate commerce and individual behavior in new ways never before imaginable.

The Court will hear the arguments on that issue tomorrow, for two hours. Today it starts with a 90-minute session on a preliminary issue: can it even adress the constitutionality of Obamacare?

There are other issues, too, besides the individual mandate. Even before the Court reaches that subject, it must broach the issue of the Anti-Injunction Act, a 145-year-old federal tax law which could bar the Court from even hearing a challenge to the individual mandate. Under that law, one cannot sue over a tax until they have paid it. If the penalty for violating Obamacare’s individual mandate is considered a tax under that law, then the challenge could not be brought at this time since the penalty has not yet taken effect. Obamacare’s challengers and even the Obama Administration agree that the Anti-Injunction Act shouldn’t prevent the Court from hearing the case, but the issue will still be heard, and some think that the Court could rely on the Act as a way of avoiding having to answer the question of whether the mandate is constitutional.

If it decides that the Act bars it from considering the constitutionality of Obamacare, the Court will not be able to address that issue until 2015. [UPDATE 03/26: The Supreme Court has posted an audio recording and transcript of this morning's arguments at this link.]

Mr. Brownfield notes that after the Court finishes the Anti-Injunction Act and constitutionality issues, then the issue of severability presents itself -- whether and how much of the law should be struck down. These issues will be addressed for 90 minutes on Wednesday morning:

If the Court finds the Anti-Injunction Act doesn’t apply, it will move on to the individual mandate. Its decision on that issue brings with it a whole other set of problems — namely, if the Court finds that the mandate is unconstitutional, it must next decide the issue of severability — whether Obamacare will operate as Congress intended if it is stripped of the mandate, or whether all or parts of the law must be struck down with the mandate. If the Court finds that the mandate is severable, the Court can strike it down and leave it up to Congress to clean up what’s left, or, as the Obama administration has recommended, it can strike down the mandate and related provisions of the law that depend on it. Finally, if the justices find that the mandate is not severable, then it will throw out all of Obamacare, and it will again be up to Congress to enact real market-based health care reforms that bring down costs while increasing access to care.

On Wednesday afternoon, the attorneys will return to address one final issue:

There is another issue, too, tied to Obamacare, and that has to do with Congress’s decision to impose new requirements on states forcing them to expand the Medicaid program and abide by the federal government’s conditions, leaving them to shoulder much of the costs while operating Medicaid according to Washington’s whims. If the states don’t comply, they could lose all Medicaid funding, putting them in an untenable position in which both their autonomy and their sovereignty collapse under Obamacare’s weight. It is up to the Court to decide whether Congress overstepped its bounds.

And Mr. Brownfield concludes with what I consider a huge irony: we have come, as a nation, to the point  where we trust nine justicies to decide our future, because our elected representatives are too tied to the special interests who keep them in office to be able to act in the country's best interest:

America waits for the Supreme Court to weigh the facts and the law, to consider the precedents and the policy, and to issue a decision that will have implications far into the future. Will Congress be limited by the Constitution, or will its authority expand beyond the limits that the Founders intended? Will Americans’ liberties stand? Will Obamacare fall? No matter the outcome of the Court’s ruling in June, Congress can and should act now to repeal Obamacare and rid the land of this intolerable act.