Pre-argument developments in Obamacare

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.

 

25 replies
  1. dkortebein
    dkortebein says:

    I,  like everyone else look for forward to your analysis, on this most crucial of issues.

  2. JBS
    JBS says:

    Staying tuned . . . I pray that SCOUTS does not abandon the American people and let this naked Socialist grab stand.

    • SoundOffSister
      SoundOffSister says:

      Typically laws have a severability clause that provides that if one section of the law is found invalid, the rest of the law is still valid.  Earlier versions of this law had a severability clause, but for unknown reasons it was deleted from the final version.  In the absence of a severability clause, the opponents of Obamacare are arguing that Congress must have intended the entire law to fall if one section was found invalid.  That result doesn’t necessarily follow, but it certainly presents an interesting question.

  3. Barb
    Barb says:

    SOS, thank you so much for taking on this challenge, as you have done ever so capably throughout this whole Obamacare nightmare.  We are so fortunate to have you as our resource, and I gratefully look forward to your daily summing up. 

  4. Dr Underhill
    Dr Underhill says:

    SOS, it’s been over 45 years since I studied Con Law, but I think the Warren Court expanded the Commerce Clause in Heart of Atlanta and other Civil Rights cases.  I know that national currency used in I/S Commerce invited the regulations, but didn’t those decisions establish a Due Process right to equal treatment that can be contorted into a right to health care?  Since govt already provides health care, it’s considered a social good. 

    • SoundOffSister
      SoundOffSister says:

      Personally, I don’t think Heart of Atlanta applies to the individual mandate, although the government is arguing that it does.  In Heart of Atlanta the Court held that a motel operator could not refuse to provide lodging to African-Americans.  There, the motel operator was already engaging in commerce by offering rooms to travelers.  Here, the individual is not already engaged in commerce, but, “is sitting in his living room, minding his own business”, but under the law is now being forced to engage in commerce.
      Taking the 14th Amendment’s right of equal protection under the law, and converting that into a right to healthcare seems a stretch.  But, then again, I suppose anything could happen.

  5. stinkfoot
    stinkfoot says:

    It strikes me as a backhanded admission by this administration of the dubious constitutionality of the legislation to pursue a legal strategy aimed at delaying having the thing considered- possibly until after enough time has elapsed that Obama can further stack the supreme court or until it’s been put into effect which I presume makes it more difficult to repeal.
    I’m no legal scholar but it not only strikes me that the legislation  is illegal but also that the administration knows this and doesn’t care.  The tactics employed by this president are very unsettling and when he isn’t called out for statements like, “you have to pass it to find out what’s in it” by the press then I get the sense that our fate is sealed and we are destined to henceforth be a society that used to be free because no one seems willing to stop this very toxic momentum.

    • Lynn
      Lynn says:

      Totally agree, Stinkfoot. But I’ll take your word that your foot stinks. I just needed a laugh. Nice name!
       
       

      • stinkfoot
        stinkfoot says:

        It’s a Frank Zappa reference actually… someone who, if he were still alive might be spinning his usual musical parody over this.

      • Lynn
        Lynn says:

        Thanks, for explanation. Just goes to show that conservatives sometimes are clueless on POP Culture.

    • Dimsdale
      Dimsdale says:

      Or, in reality, a Constitutionally minded SCOTUS that is above partisan influence (or can at least suppress it).

  6. sammy22
    sammy22 says:

    Oh, you mean a SCOTUS different from the one that ruled that  a corporation is a “person” vis-a-vis the 1st Amendment?

    • Dimsdale
      Dimsdale says:

      Well, how about one different than that which ruled that a DNA verifiable fetus is not a human being?  On what was effectively a contrived story…

  7. Lynn
    Lynn says:

    SOS, In your opinion, why is  SCOTUS  making decisions on the constitutionality of  so many life altering “REFORMS”?

    • stinkfoot
      stinkfoot says:

      I can’t anticipate how SOS would respond but it suggests that this administration and congress are passing reforms that at best bend the rule of law as it stands by pushing the limits of their authority.  If an unusually large portion of legislation has to be reviewed by the highest court, it suggests that lawmakers are  likely purposefully pushing the limits to see what they can get away with.  What we need is a population of watchdogs.

      • Lynn
        Lynn says:

        Thanks, my thoughts exactly.  I think I’m starting to bark, I hope I don’t start craving dog food.

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