Morning Bell: And Now the Supreme Court Must Decide

Mike Brownfield /

For the past three days, the nine justices of the U.S. Supreme Court heard a series of arguments on Obamacare — what promises to be one of the most seminal decisions in the Court’s history. Now that the dust has settled, it appears more than likely that President Obama’s signature health care law is on the verge of being struck down — perhaps even in its entirety.

The challengers to the law include more than half of the States of the Union, the National Federation of Independent Business, and private parties, while the Obama Administration is standing in defense of it. Having heard arguments on Monday on whether a law called the Anti-Injunction Act would bar the Court from considering whether Obamacare’s individual mandate to purchase health insurance is unconstitutional, the Court on Tuesday moved on to examining the mandate itself and whether Congress vaulted across the Maginot Line of constitutionality when it imposed the mandate on Americans.

The liberal justices of the Court hammered the attorneys who were challenging Obamacare, leaving little doubt where they stand on the law. In their view, it appears, the Constitution’s Commerce Clause, which gives Congress the authority “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” also empowers Congress to impose the individual mandate. As the government argued, since everyone will have to participate in the health care market at some point, the government is justified in requiring people to buy insurance today. Heritage’s Todd Gaziano explains the failure of this argument:

There’s a difference between regulating commerce that’s already happening and forcing individual Americans to enter into commerce — in this case, the health care market — so that Congress can better regulate it…

If Congress were able to regulate things that people will eventually have to do, then there would be virtually no limits to its power.

That’s an argument that resonated with the Court’s conservative justices and with Justice Anthony Kennedy, who oftentimes votes with the conservatives but is seen as a crucial swing vote in this case. At two different times, Justice Kennedy stated that the government’s theory would “fundamentally change the relationship between the individual and the state.” His thinking on the issue could be a bad sign for Obamacare.

If the Court were to strike down Obamacare’s individual mandate, it would also have to consider what to do with the rest of the law. Should the justices just strike down the mandate? Should they eliminate the mandate and any of the related sections (which would be difficult to identify), or should they throw out the whole law? This question is what’s known as “severability,” and it was one of the focuses of the third day of oral argument. And on this issue, too, the Obama Administration did not have a good day. Heritage’s Todd Gaziano and Hans von Spakovsky explain:

The more liberal justices were clearly hostile to the arguments being made by Paul Clement on behalf of the challengers that the entire statute must be struck down. However, other justices, including Chief Justice Roberts and Justice Kennedy, were obviously concerned that the complex scheme designed by Congress will not work as intended by Congress without the individual mandate — which is the ‘heart’ of the law as Justice Scalia and others later referred to it — and thus they may need to strike down the entire law if the mandate is unconstitutional.

One issue remained for the Court — Obamacare’s Medicaid spending provisions under which Congress relies on its “spending power” to expand the program and coerce states to do its bidding. Those challenging the law say that the Medicaid expansion effectively “commandeers” state government, thereby undermining the states’ sovereignty and autonomy. On this question, it is less clear where the Court will come down. Though the liberal justices who would uphold the individual mandate will certainly uphold the Medicaid provisions, it’s less clear where Justices Roberts, Scalia and Thomas stand on the issue. But if the Court chooses to strike down all of Obamacare, the Medicaid provisions will fall along with it and the justices will not have to decide this issue. A ruling on all issues is expected from the Court in June.

In making his final argument in defense of Obamacare, Solicitor General Donald Verrilli alluded to the Constitution’s preamble and its call to “secure the blessings of liberty” in his justification for Congress’ actions. Paul Clement, arguing on behalf of Obamacare’s challengers, eloquently responded to Verrilli’s call to the Constitution:

Let me just finish by saying I certainly appreciate what the solicitor general says, that when you support a policy, you think that the policy spreads the blessings of liberty. But I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not. And it’s a very strange conception of federalism that says that we can simply give the states an offer that they can’t refuse, and through the spending power which is premised on the notion that Congress can do more because it’s voluntary, we can force the states to do whatever we tell them to. That is a direct threat to our federalism.

The Constitution’s words are stirring, indeed, but have little meaning if Congress is to trample on the founding document’s very real limitations. And so America waits for the Court to decide, two years after a severely divided Congress passed Obamacare and stretched its powers beyond the Constitution. But whether the Court upholds Obamacare or strikes it down, all or in part, it does not have the final say on this issue. It ultimately falls to the American people, through their representatives in Congress, to decide the future of health care in America and whether the federal government will live within its constitutional limits. Obamacare must be fully repealed.

http://www.morningbell.org

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