Is ObamaCare Unconstitutional–Your 60 Second Guide

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.

Issue #3–Severability

“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–

Individual Mandate–unconstitutional.

Medicaid Expansion–unconstitutional.

Severability–No, the entire Act will be ruled unconstitutional.

Trending Stories

Topics: Insurance

24 Responses to “Is ObamaCare Unconstitutional–Your 60 Second Guide”

  1. As a faithful reader of your site for years I signed up to receive notifications because I believe a lot of the information you share on your site is so valuable, that said this is the second time in a short span of time that you have shared your views on a political issue. Thank God for America and free speech however I signed up for your site to learn about “Making More, Spending Less, and Investing the Rest”. Everything else should be left to all the other blogs. BTW thanks for the tip on Betterment, the site is great.

    • Rob Berger

      Jo, thanks for the comment. I do get the same reaction from other readers, but the fact is our government has a huge impact on “making more, spending less, and investing the rest.” However the Court rules on the case, it will affect our finances in significant ways.

      Oh, and I’m glad you like Betterment. Now that its fees are much lower, I think it’s an excellent investing option. I’m going to get my children set up with an account (once they get a job!).

  2. The health care options offered by the Obama Administration are not unconstitutional. The enormous costs of a primarily profit centered, privatized insurance system culture that does not offer broad benefits that could meet the needs of all American is the issue. That is what is unconstitutional and un-American.

    • I can almost guarantee, Mary, you have never even read the Constitution. A simple review of the short document would at least give to a discussion rather than ranting about evil insurance companies.

      I know the system is broken but government intervention like this is scary at best and detrimental at worst.

  3. If Obamacare is declared unconstitutional, some members of my family will lose the health insurance because of preexisting condition. They might as well sign the death wish for them. This is very scary time for us.

    • Rob Berger

      Emanon, I couldn’t agree more. I still don’t see why we can’t come up with a system that allows everybody to buy health insurance at group rates (with pooled risk). I know it’s easier said then done, but surely we can find a way (whether it involves ObamaCare or not).

  4. Being America is not about being given everything, it is about the freedom to life your life and make choices. I do not want to give the government the power to decide for me and make me pay. I have looked at other countries that have government insurance….try being taxed 40% of your income and when something goes wrong in surgery and you are injured by it…try to get help from the government….to sue them….doesnt work anywhere else.

  5. Rob, I think you did a great job of not being political on this topic. Thanks for your courage in covering it. That said, I will be political. 🙂

    This is the problem with passing 2700 page (completely partisan) laws in the middle of the night behind closed doors. I hate to say we told you so, but we were shouting at the top of our lungs! Madam Speaker, if only we could have read the bill *before* we voted on it, we’d of possibly predicted this.

    The Dems wasted 2 years of complete control of our government to pass an unconstitutional law. The whole thing was just a waste of everyone’s time, energy, and our tax dollars. Not to mention I’ve been paying higher health insurance premiums as a result of the impending costs of this thing to insurance carriers. I’m sad for people on the other side too…people who’s hopes have been dashed (like Emanon’s family above) because they were promised one thing only to have it ripped away from them.

  6. Thanks for taking the time to discuss this I feel strongly about it and love learning more on this topic. If possible as you gain expertise would you mind updating your blog with more information? as it is extremely helpful for me.

  7. We have got to start somewhere and Obamacare isn’t perfect but it’s a start.

    Nowhere else is health care as expensive as in the US. (Yes, Europe’s health rates may seem expensive, but the insurance includes everything with no or low copays. In other words, you don’t get a list of covered services because you don’t need it.)

    Nowhere else is someone else’s misfortune so exploited as in the US.

    Nowhere else do you have a bankruptcy rate as high as 45% (haven’t checked last year’s numbers) due to healthcare costs. That part is embarrassing and cruel.

    The fact that I pay over $ 800 for my family’s health insurance with a $2500 deductible each (no pre-existing cond, non smoker etc.) is outrageous. We live in the LA area and it seems to be a going rate.

    The fact that my insurance’s contracted rate with my doctor is higher than his cash rate – so it doesn’t even make sense to apply the payment to my deductible – should be illegal.

    My type of insurance coverage used to be called ‘catastrophic’ insurance because it covers the worst case scenario. Catastrophic insurance used to be cheap because of the high deductibles. But the insurance companies slowly decreased coverages until now a ‘regular’ insurance plan has only catastrophic coverage. The consumer is the idiot, once again.

    The current insurance system is a joke; we have to start changing something somewhere. I’m all for moving forward even with an imperfect plan. We’ve been stuck way too long.

  8. The way our health care system works is the perfect scam:

    We all go to the doctor not knowing exactly what it will cost us. The doctor’s office also can’t tell us exactly how much it costs because it ‘depends on the insurance’.

    It’s the equivalent of buying a car without knowing the exact price and then paying whatever we’re told a few weeks later. Who would agree to that??

    How did we get so complacent?

    I hate rules and too much government as much as anyone, but something needs to be done to reign in this Wild West of so called health care.

    And it should really be called ‘sick care’, because good health isn’t rewarded in any way – doctor’s actually have a financial incentive to keep you in a state of sickness – and people are discouraged to help themselves – but that’s is another topic…

  9. Words matter. When a post has “ObamaCare” in the title and repeatedly uses that term for the Affordable Care Act, it reinforces a partisan, political position. That’s what I find offensive. I agree with your point that politics affects our money, but it would be helpful to me to have references that are more neutral in tone,i.e., using the name of the Act itself.

    I worked in the health care insurance industry for a while, and our small businesses benefited a lot in the way of reduced premiums after the bill was passed. I have since left, but as pointed out here in several points, this system is in shambles, and needs serious overhaul.

    We live in fear of skyrocketing medical costs and rationed care. I’ve tried to get estimates of costs in advance of medical procedures, most of the time the doctor’s office, pathology labs and insurance companies can only give me a vague idea of the cost. Usually they are baffled about why I’m calling. It’s totally ridiculous. Even if I try to manage my health care costs, I can’t.

    The Affordable Care Act does a lot of really important things to help patients. I hope the whole thing isn’t scotched because of the individual mandate. I really think we have no other way at this time to move toward cost containment.

  10. Yes, Obamacare is UNCONSTITUTIONAL and so is STEALING from the Social Security Fund by the U.S. Government and never repaying the “LOAN”. That’s not only UNCONSTITUTIONAL but down right THEIVERY and the theives should be thrown in JAIL and the key thrown away.

  11. Americans are always bitching about something, they don’t want to pay for health care but when they need it then it’s a different story. They cry like hell about keeping their guns but have a fit if someone is shot. And it’s always screw the other guy, why should I pay for their birth control pills? so what if a trillion unwanted brats are born? it’s not my problem. I got my constitutional rights ya know. Isn’t there some thing about the common good?

  12. The powers delegated by the proposed Constitution to the federal government are few and defined……are few and defined….that’s kinda like 3 or 4 and being in black and white….Those which are to remain in the State governments are numerous and indefinite……duh!

  13. Thank you for tackling such an important issue. If the mandate is constitutional we might as well throw out the Constitution and start all over. What good is the the 10th admendment if the Federal governement can force you to buy a product just because one exists.

  14. Kevin Beck

    The whole pile of junk is unconstitutional.

    The only proper way for an unconstitutional law to be passed is by amending the Constitution. But Congress always refuses to do things correctly, which is why the Constitution has been twisted beyond its intent.

  15. Daniel

    People refuse to acknowledge that a lot of people don’t have health insurance but use medical care. They don’t pay. The cost is absorbed by the people that have insurance through rates and only covering 80 to 90% of the bill which you have to cover the rests. It’s typically $1Ks.
    Conservatives state: Don’t treat if you can’t pay. As Americans, we will not let people die in the streets. Or, maybe we should, that way it would quickly usher in universal healthcare.
    The mandate makes people responsible that can afford to buy insurance (that don’t) and puts people that can’t afford it with preventive care that lowers the end cost that will be spent on them anyway.
    It’s not fair. And, “maybe” unconstitutional. But, it sensible from a financial view.

Leave a Reply