Did you really expect anything different? For those of you who are shocked and surprised at the words President Obama used yesterday concerning the health care act that passed with “a strong majority” (WTF?) in Congress, where have you been since 2008?
This afternoon the Supreme Court heard the last of four oral arguments dealing with Obamacare…the states’ argument that Obamacare’s new mandates concerning Medicaid are an unconstitutional intrusion into states’ rights. You can listen to the argument here, and read the transcript of the argument here.
The states can opt out of this expansion if they want to, but, they argue, if they do so, the law gives the Secretary of Health and Human Services the right to cut off all federal Medicaid funding, and, thus they are being coerced into going along. As a matter of law, if the Court finds that the Medicaid expansion is coercive, then the law is unconstitutional.
All seemed to be going well for the government when it was brought out that the Secretary had never cut off funding for a state’s refusal to go along with a new federally mandated program until we learned from the attorney representing the states that the Secretary had, in the past, threatened to cut off all Medicaid funding for the State of Arizona if they refused to implement a new program.
But it’s a letter in the record in this litigation, and it’s a letter from the secretary to Arizona, when Arizona floated the idea that it would like to withdraw from the CHIP program, which is a relatively small part of the whole program.
And what Arizona was told by the secretary is that if you withdraw from the CHIP program, you risk losing $7.8 billion, the entirety of your Medicaid participation. So this is not something that we’ve conjured up — [See page 16 of transcript]
That is the fear that the states have. Although we can “opt out” of the new mandates, if we do so, we could lose all Medicaid funding.
Although the Solicitor General argued that the Secretary would not be able to cut off all funding unless it was “reasonable”, at least two members were unpersuaded. All they wanted from the Solicitor General was some assurance that the Secretary would not do so. The Solicitor General refused to provide that assurance.
CHIEF JUSTICE ROBERTS: Could you give me some assurance? We heard the question about whether or not the Secretary would use this authority to the extent available. Is there circumstances where you are willing to say that that would not be permissible? I’m thinking of the Arizona letter, for example. I mean, if I had the authority and I was in that position, I would use it all the time. You might — you want some little change made? Well, guess what; I can take away all your money if you don’t make it. I win. Every time. It seems that that would be the case.
So why shouldn’t we be concerned about the extent of authority that the government is exercising, simply because they could do something less? We have to analyze the case on the assumption that that power will be exercised, don’t we?
GENERAL VERRILLI: Well, Mr. Chief Justice, it would not be responsible of me to stand here in advance of any particular situation becoming — coming before the Secretary of Health and Human Services and commit to how that would be resolved one way or another… [See pages 47-48]
And then, there was this,
JUSTICE KENNEDY: There’s no real — there’s no realistic choice. There’s no real choice. And Congress does not in effect allow for an out — opt out. We just know that.
And it’s –
GENERAL VERRILLI: No, I guess I –
JUSTICE KENNEDY: — it’s substantial. [See page 70]
Just from the questioning, I would say that the “conservative” members of the Court have problems with the reality that no state can opt our of this expansion.
The ironic part is that if the Solicitor General had just assured the Court that states would not be punished for failure to follow the new mandates, this issue would have gone away.
If you are interested in reading all of the briefs filed in the Supreme Court on this issue, you can find the links for that here.
Today the Supreme Court heard two hours of oral argument dealing with the constitutionality of Obamacare’s mandate that all persons (with limited exceptions) purchase “qualified” health insurance or pay a penalty. You can listen to the audio tapes of this argument here, and read a transcript of the arguments here. Read more
Tomorrow the Supreme Court will hear arguments on that portion of Obamacare that requires citizens to purchase government mandated insurance from a private company, or pay a penalty. Read more
This morning the Supreme Court heard the first of what will be three days of oral argument concerning Obamacare. Today’s argument dealt solely with the issue of whether the Court has jurisdiction to consider the case at this time because the penalty for failure to have minimum coverage is, in fact a tax, and under the Anti-Injunction Act, suits contesting taxes can only be brought after the tax has to be paid. Read more
If you were watching CBS This Morning, as I was, you know the hot topic is that the Supreme Court (SCOTUS) has Øbamacare as the topic of the week, and you were “treated” to interviews with Democrats Howard Dean and Sen. Gillibrand. You also know that the damage control is beginning in anticipation of a loss.
Both were asked if the offending individual mandate provision of Øbamacare would be deemed unconstitutional and if it could survive if that ruling came down. Both said unhesitatingly that it could survive, mostly because of all the “good” provisions in it. Dean (and here) did not think the individual mandate provision would survive, and Gillibrand (go to the 3 minute mark) was doubtful as well, but they both seemed to think that the law could survive without it. They were certainly trying to put a good spin on it, but this sounds like they aren’t too confident.
Others are trying to make the case that ruling Øbamacare would have “grave” and “profound” ramifications for the country (as if its passage wouldn’t!):
David Boies (of Gore v. Bush fame) is of the opinion that this ruling could determine the reach of gov’t well beyond this case extending back to the New Deal, and that this would a bad thing. He argues that the car insurance mandate comparisons are not relevant as they are state based and the states have the power to do things like this while the fed does not. Where was this guy two years ago?
Neal Katyal, who, as acting US Solicitor General, defended the constitutionality of Øbamacare in lower courts, warned of “grave” and “profound” consequences if the Supreme Court accepts a challenge to the law. His argument basically came down to “cut the mandate and you cut all the supposedly good provisions of the law”.
So we appear to have a two pronged spin approach by the Democrat mouthpieces: Øbamacare can withstand the loss of the mandate, and/or it can’t. They are covering all the bases as much as possible, i.e. make it a political win regardless of the outcome, despite the majority of those recently polled saying they disapprove of the law, and 67% saying it should be repealed all or in part.
On the same topic, Gillibrand went on to call for the televising of the SCOTUS proceedings, saying “this decision fundamentally affects every single American and that they should be part of the discussion, asking the questions and being engaged” and “transparency and accountablilty in this branch of government would also benefit”. I don’t recall her speaking out for the closed door, partisan planning and writing of this bill two years ago. Where was the call for transparency then? Where was the call for us to be engaged in the process? Where was she when Pelosi said “you will have to pass the bill to see what is in it”??
Hey Senator: we have seen the bill and the majority of people are against it. In light of the aforementioned polls, all this proves is that the Democrats will ignore you if you go against their grandiose plans and power grabs.
Let the games begin…
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. Read more
Last October we told you about a case set to be argued before the Supreme Court, Hosanna-Tabor Evangelical Lutheran Church v. EEOC. The Case was argued on October 5, and the Court rendered its unanimous opinion today. The opinion is not surprising, but, the concurring opinion of Justices Alito and Kagan was somewhat unexpected. Read more
Speaking of Obamacare, today the United States Supreme Court set the dates for the oral arguments concerning Obamacare. As you may recall, last month the Supreme Court agreed hear various appeals brought by several parties in “the Florida case”, breaking it down into four separate arguments totalling five and one half hours of argument. Read more