As an attorney working just minutes from the Supreme Court, this week has been unique even for this crazy town. Rarely do you see demonstrations like we’ve had this week outside the Court of Last Resort. But then, Obamacare is no ordinary case.
If you’ve wondered exactly what the fuss is all about, here is your 60 second guide to the Affordable Care Act litigation:
Issue #1–The Mandate
“Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.”
The first issue is whether the federal government has the authority to require citizens to purchase health insurance. Recall that ObamaCare penalizes those who do not buy health insurance (with exceptions for those who cannot afford insurance). Defenders of the mandate point to the commerce clause of the Constitution, which has been interpreted VERY broadly, and argue that it authorizes the mandate. The clause is found in Article 1, Section 8, Clause 3 of the Constitution and empowers the Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
But whether the commerce clause can go so far as to authorize the federal government to force citizens to purchase a commercial product is another matter. Keep in mind that the federal government is one of enumerated powers. It has the powers given it by the Constitution; nothing more, nothing less.
Issue #2–Medicaid Expansion
“Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress‘s spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?”
ObamaCare includes a massive expansion of Medicare, and it passes some of the costs on to the states. That by itself would be fine if the States had the unfettered right to say, “No thank you.” The problem is that if a state declines the federal government’s gift, it loses all existing Medicare funding. As such, it’s a lot like the Godfather asking for a favor. You can say no, but you’ll wake up with a horse’s head at your feet.
“The question presented is whether [ObamaCare] must be invalidated in its entirety because it is nonseverable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution.”
If the Supreme Court rules that the mandate to buy health insurance is unconstitutional, what happens to the rest of ObamaCare? That’s the question at issue here. Do you just get rid of the mandate, or do you jettison the entire act? A problem with just getting rid of the mandate is that the act would continue to require insurance companies to provide health insurance at a reasonable cost, even though not everybody would be required to buy it. Without the pooled risk that the mandate would provide, insurance companies would have trouble surviving.
During oral argument on this point, the Solicitor General argued that conservative judicial philosophy (that judges should not make policy) supports severing the mandate while keeping the rest of the act in tact. Justice Kennedy disagreed, saying that it would be far more conservative to get rid of the entire legislation than leaving it in place sans the mandate, which would result in a statute that the Congress never intended.
Twenty years as a trial attorney has taught me one thing–you can’t predict the outcome of a case based on a judge’s questions during oral argument. I listened to a lot of the argument, however, and the questions seemed very antagonistic toward ObamaCare. Justice Kennedy, often viewed as the “swing vote” because he sometimes side with the conservative justices and sometimes with the liberal justices, seemed to take issue with the act. With that said, here are my predictions–
Severability–No, the entire Act will be ruled unconstitutional.