Liberty’s Landmark
Week
Grace-Marie Turner
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.
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