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Supreme Court to hear challenge to Obamacare.

Given the circuit split (different circuit courts reaching different conclusions as to the constitutionality of the so called “Affordable Care Act”) which has previously been mentioned by various of the bloggers here, it was virtually certain that the Supreme Court would have to take up the issue. The only real question was when and which of the various challenges would be heard.

Supreme Court will hear health care case

By Paige Winfield Cunningham
The Washington Times

The Supreme Court said Monday it will take up challenges to President Obama’s health care law next year, setting the stage for a ruling on the president’s trademark achievement amidst his bid for reelection.

Out of multiple lawsuits filed against the Affordable Care Act, the justices chose a case brought by 26 states and the National Federation of Independent Business (NFIB) challenging the law’s individual mandate that requires Americans to purchase health insurance and its dramatic expansion of Medicaid.

Both sides had asked the Supreme Court to take up the case next year, before voters decide whether to re-elect Mr. Obama to a second term.

Also of interest will be the Supreme Court’s take on severability, as the bill that had to be passed before it could be read failed to include a severability clause, thus subjecting the whole to being overturned if any part is overturned.

Five and a half hours of oral argument (unprecedented in the modern era) are scheduled for March of 2012, with a ruling anticipated by June of 2012.


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  • jim_m

    From the National Journal Article:

    The justices asked lawyers to answer four legal questions about the law in their briefs, signaling that they will rule on each.

    They are:

    The individual mandate. The law’s requirement that virtually every individual buy health insurance is at the heart of the many challenges to the law. The challengers contend that such a requirement is unconstitutional because the commerce clause should not used to compel individuals to purchase a product they do not want.

    So far, two Appellate courts have rejected this argument, ruling that the mandate is acceptable. One court has sided with the challengers, saying the mandate should be overturned.

    Severability. When the law was passed, members of Congress said that the mandate was essential to make other insurance reforms in the law work. If the justices strike down the
    mandate, they will have to decide whether that means the law can stand without it, or the whole law must fall.  

    The one court to overturn the mandate, the 11th Circuit Court of Appeals in Atlanta, found that it can be separated from the rest of the law, and it ruled the rest of the law should be preserved.

    Medicaid expansion. The health care law expands eligibility for Medicaid programs by threatening to withhold all federal Medicaid funds if states don’t cover anyone earning up to 133 percent of the federal poverty limit. Critics say that placing such significant financial conditions on a state’s behavior is “coercive” and exceeds Congress’s spending power. The issue has only come up so far in the 11th Circuit cases, but neither the trial court nor the Appellate Court
    agreed with this argument.

    Jurisdiction. Judges in two Appellate courts have argued that the time is not right for the courts to even consider whether the law is constitutional. They cite an 18th-century law that
    prevents individuals from challenging their taxes until after they’ve been assessed and paid.

    The justices will have to decide whether the law’s penalty for not buying insurance functions enough like a tax that these rules should apply. If they agree with the argument, lawsuits will be barred until after the mandate goes into effect.

    The good news is that they took the cases from the 11 circuit where the strongest ruling against obamacare has come from.

  • retired.military

    “Judges in two Appellate courts have argued that the time is not right for the courts to even consider whether the law is constitutional.”

    If not now when, If not by the SCOTUS then who?  Just because folks havent been forced to buy insurance yet doesnt mean that the law is or is not constitutional.   What if a state passed a law that stated everyone who gets an abortion automatically receives the death penalty.  Would these same justices argue that you cant call the constituationality of the law into question until after the person had died from the death penalty?   yeat that will go over big in lib country which is where those 2 justices are firmly ensconced I am sure.

    • jim_m

      If I understand correctly, the argument is that the court may (contrary to how the law was enacted) decide that the penalty for noncompliance is a tax and not a fine.  If that is so, then no one has any standing to contest the law until the tax is implemented in 2013.

      But that is just for the penalty part of obamacare.  The rest of it, whether or not you can force someone to purchase anything because the nonpurchase of anything is “economic activity”. is still in play.  I think Taranto’s call in the WSJ is pretty good. Anything from 5-4 striking it down to 8-1 upholding it.  The 4 libs will never strike it down and you can’t call the rest except for Thomas.

      My guess is that they strike down part of it and rule that it is severable, leaving a large part if not most of it intact.

  • herddog505

    What I find pathetic is that there’s any question: ObamaCare should go down as blatantly unconstitutional in any and every court that looks into it.  THERE IS NOTHING IN THE CONSTITUTION THAT GRANTS THE FEDERAL GOVERNMENT THIS KIND OF AUTHORITY.

    Unfortunately, the courts have gone away from decided what the law says to deciding what’s best for us.  Therefore, they’ll think of any twisted logic that they can to decide that, by golly!  there IS something in the Constitution that gives the federal government this and any other power it needs “for our own good.”

    Bah.  A pox upon them all.

    • jim_m

      You’re right, there isn’t anything granting them this power, but they are asking for it none the less.  This is important because the court may just grant them this power anyway.

      One thing that obama complained about in his radio interview in 2005 was that the constitution didn’t say what the government could do without the consent of the people.  This is his way of getting that.

      • The government is not asking for these new powers; they are asserting them. 

        The reason the objection about taxes not yet assessed is made is because of two things:  standing, the general concept that you can’t sue over damages which have not happened yet, and an older law specifically prohibiting courts hearing cases against taxes which have not been implemented.

        But the latter issue does not apply to the States, and their standing should be resolved by the effect on them fiscally.

  • Anonymous

    If this is found constitutional it is time for the 38 state solution.

    Better a Constitutional Convention where things might go wrong than a federal government completely unshackled from even the clearest checks on its power under the current Constitution.

    • It’s not necessarily the end if it is declared unconstitutional.  It only puts a renewed urgency on repeal.  It would bring the anti- crowd out for elections, which increases the chance of repeal.

      But a Constitutional Convention is probably doomed to deadlock anyway.  There are no rules, no guidelines, the liberals will argue every point to death and then immediately run to court on the ones they lose.  It’s a guaranteed fustercluck.

  • Anonymous

    Unfortunately I am reminded of the Kilo Decision which expanded imminent domain. ww