Liberty’s Landmark Week
National Review Online, March 26, 2012
The Supreme Court will hear six hours of arguments over three days about four questions involving the 26-state challenge to Obamacare. Here is a quick guide to what you need to know to follow the case, which former attorney general Ed Meese has called “the most important case to come before the court in 100 years.”
10 a.m. Monday: 90 minutes on whether the fine associated with the individual mandate is a penalty or a tax. If it’s a penalty, then the court can proceed with deciding whether the mandate is constitutional. If the justices decide it’s a tax, we’ll have to wait until someone who doesn’t buy health insurance in 2014 pays the “tax” in 2015, when the legal challenge must start all over again.
Best conjecture: The Court will decide it is a penalty and not a tax, telling the president and supporters of the law they can’t deny it is a tax all through the debate over the law then switch to saying it is a tax in court to try to pass constitutional muster.
10 a.m. Tuesday: Two hours of argument on the individual mandate. Is it constitutional for Congress to mandate that free citizens must purchase government-defined private health insurance with their own money, under penalty of federal law?
Obamacare supporters say this is just another step in the expansion of the Commerce Clause of the Constitution, that health care is definitely commerce, and the mandate is “necessary and proper” for the federal health-overhaul scheme to work. Opponents say the mandate compels people to engage in commerce, even against their will, and forces them to enter into a binding contract — police-state tactics unprecedented in our democracy.
Best conjecture: This is the court’s chance to put the brakes on the expansion of the Commerce Clause; if it fails to do so, there will be no limiting legal principle to keep Congress from mandating how we must spend our personal, after-tax dollars. If the mandate is declared unconstitutional, it will most likely be a 5–4 decision. If it is upheld, other justices may join the majority for a 6–3 or even a 7–2 decision.
10 a.m. Wednesday: Ninety minutes on severability. If the mandate is unconstitutional, is it severable from the rest of the law? Lower courts have implied severability, and the Supreme Court could, as well. It could 1) strike only the mandate; 2) strike the mandate as well as several of the associated insurance regulations requiring health insurers to sell policies to all comers, charging the sick and the previously uninsured the same price they charge the healthy and those who have maintained prior insurance coverage, and 3) strike all of Title I, as the American Enterprise Institute’s Tom Miller advised in an amicus brief that would rid the law of the individual mandate, the employer mandate, state health exchanges, most federal health insurance rules, and hundreds of billions in new spending for new entitlement subsidies; or 4) anything else the court chooses.
Best conjecture: U.S. District Court Judge Roger Vinson notes that the government has said more than a dozen times that the individual mandate is central to the workings of the health overhaul, so if the mandate is unconstitutional, then the whole law must go. Most likely, the court will imply severability, in which case, the best scenario would be striking all of Title I.
2 p.m. Wednesday: One hour on the mandatory Medicaid expansion. This is the main event that the states are waiting for: Can the federal government require the states to expand their Medicaid programs to a level many say will bankrupt them as a condition of receiving current Medicaid funding?
The states will argue that this is an unconstitutional infringement of the Tenth Amendment’s protection of their sovereignty. The government will argue that, if the states take Medicaid money, they must expand their Medicaid programs as part of the deal.
Best conjecture: The states have a tough battle here, since no lower courts have backed their position. Their recourse, if they were to lose, is the Paul Ryan budget, which disburses Medicaid funding to the states as block grants so states have control over how it is spent. The next Congress could then scale back the expansion.
What to watch:
The daily audio tapes and unofficial transcripts will be posted at www.supremecourt.gov as soon as they can be digitized (by 2 p.m. on Monday and Tuesday, and by 4 p.m. on Wednesday, because there’s a double session that day). The official website will crash, so follow our posts on NationalReview.com and galen.org, and our Twitter and Facebook posts.
It’s almost impossible to get tickets to get into the courtroom, and BlackBerries and cellphones are confiscated from all who enter. We’re not standing in line, so will be gathering information however we can to provide you with updates and insights.
The justices will meet, most likely on Friday, to vote on the four issues. Then they and their clerks will begin writing what will likely be a complex network of decisions, which will be handed down by the end of June.