As I assume everyone knows, beginning Monday, the Supreme Court will hear oral arguments concerning the constitutionality of Obamacare. But, there are are two developments that have already happened in the Supreme Court that you should know about.
In every court thus far the government has argued that the court does not have jurisdiction to hear the case because the penalty for failing to have insurance is, in reality, a tax. And, under the Anti-Injunction Act of 1867, no court has jurisdiction to hear a tax case until the tax has to be paid. In this case, that would be 2015, for failure to comply during the 2014 tax year.
The government has abandoned that argument before the Supreme Court. However, that does not mean that this is a dead issue. The parties to a case cannot simply agree that the Court has jurisdiction to hear a case. If the Court does not have jurisdiction, it does not have jurisdiction regardless of what the parties agree upon. So, the Supreme Court appointed an Amicus Curiae, a “friend of the court” in English, to argue that this is a tax, and no court can hear it until 2015.
Nonetheless, the government is still arguing that Obamacare is constitutional under Congress’s Article 1 taxing power.
The second issue that the government abandoned at the Supreme Court level is the issue of severability. In other words, if the individual mandate is found to be unconstitutional, does the entire law fall, or simply the individual mandate portion of the law.
The government now argues that if the individual mandate is found unconstitutional, that portion of the law that requires insurance companies to issue insurance to anyone who applies without regard to their physical health, and, to charge that person the same premium as a healthy person, must also be deemed unconstitutional
As to this point, the Supreme Court has also appointed a “friend of the court” to both brief and argue this issue.
The Supreme Court will be releasing audio tapes of each day’s arguments at approximately 2 pm that day. I will listen to them (as Jim would say, so you don’t have to) and put a post up hopefully no later than 6 pm each day. On Monday, the Court will hear the jurisdictional/tax issue, on Tuesday, the individual mandate issue, on Wednesday morning, the severability issue, and on Wednesday afternoon, the states’ arguments that Obamacare is an unconstitutional expansion of Medicaid.
Although I will try to limit the ‘legalese”, please, I encourage you to ask questions if there is something you don’t understand. I have spent (unintelligible) years as an attorney, and, although retired, I sometimes slip back into legal jargon.