The SCOTUS began hearing arguments on ObamaCare's constitutionality today. The Court plans to hear arguments initially over a three day period.
A great deal of the first day's arguments were taken up by the issue of examining a statute that keeps courts from hearing tax challenges before they go into effect.
The court had asked Washington lawyer Robert A. Long to present the argument that the obscure 19th-century Anti-Injunction Act meant that the anti-ObamaCare lawsuits brought by 26 states and a private business organization were 'premature', in that no one had actually been victimized yet. Long said the court’s precedents showed that the law should prevent these suits going to court until someone actually had to pay a penalty on his or her 2015 income tax returns for not purchasing health insurance.
Long's argument was that “pay first, litigate later” could only be waived by Congress,and the penalties called for in the act should be considered the same as taxes because of the way they are collected...via an income tax penalty.
Interestingly, Long was appointed by the Court to present that legal argument because neither the Obama administration nor the law’s challengers agree with it.
Oddly enough, Justices Stephen Breyer and Antonin Scalia, who hardly agree on anything concurred that this was sheer bilge.
"Just because the penalty is “being collected in the same manner of a tax doesn’t automatically mean it’s a tax,” said Justice Breyer, “particularly since the purpose of the Anti-Injunction Act is to prevent interference with the revenue stream.” Obviously, the legal challenge doesn't interfere with revenue collection, as Breyer added.
Justice Antonin Scalia agreed, but from the opposite end of the spectrum. He remarked that as a matter of principle the courts should not be deprived of jurisdiction in cases unless the reasoning is very clear. “I find it hard to think this is clear, whatever else it is,” Scalia said.
President Obama's solicitor general, Donald B. Verrilli Jr. also said th ecase should move forward, saying, “This case presents issues of great moment, and the Anti-Injunction Act does not bar the court’s consideration of those issues.”
He also argued that the penalties in ObamaCare aren't a tax, which is intersting because one of his main defenses for the individual mandate is that it's legal and constitutional because - wait for it - it falls under congress's authority to levy taxes!
Justice Scalia as usual was quick to see the innate hypocrisy: “Today you are arguing that the penalty is not a tax. Tomorrow you will be back and arguing that the penalty is a tax.”
The individual mandate,the vile heart of ObamaCare is scheduled for arguments tomorrow, and as Justice Scalia pointed out, that's exactly the position Verrilli is going to be in.
Where might the Court ultimately go on this?
They could certainly uphold the law as written, ruling that Congress had the power to enact this law, no matter how the public feels about it. This would endorse the continued distortion of the Commerce Clause and uphold the individual mandate as part of Congress’s power to impose taxes. The court would basically be telling the American people that elections have consequences and that the remedy is to vote out the lawmakers if you want an unpopular law repealed.
Another possibility is that the SCOTUS could find the individual mandate unconstitutional and thus overturn the entire law because the statute doesn’t have a “severability clause” — standard language the Democrats somehow forgot to include that says if one part of the law is overturned, the rest of it is still in force.To me, that would be an absolutely hilarious and appropriate finish. As then-Speaker Nancy Pelosi famously said, "You have to read the bill to see what's in it."
That would especially make the Left's heads explode, because it would amount to President Obama's flagship legislation and his first two years with a super majority of Leftist Democrats being an absolute waste of time - because of an elementary omission a first year law student probably could have caught.
More likely than the above, the individual mandate by itself could be declared unconstitutional, which would mean de facto that ObamaCare is history because the law's entire rationale and means of enforcement involves it. The guts would be torn out of it.
Another point of attack that could resonate in the eventual SCOTUS ruling is a point the various lawsuits by the individual states have argued, that Congress exceeded its authority by essentially forcing them to expand their Medicaid programs. It's a a condition of receiving federal Medicaid funds,in common with other programs like federal highway funds, but the states say there's coercion involved because unlike some of the other programs, dropping out of the program isn’t a realistic option.
Of course, the SCOTUS could also simply punt due to the Anti-Injunction Act argument mentioned above, if they decided they'd rather not take this on during what's bound to be a heated election year. I personally doubt they'd do that,but I'm pretty sure at least two justices are leaning that way, and President Obama appointed them both.
An interesting debate, to be sure, and a decision ought to come right in the middle of the 2012 campaign.
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