Obamacare - Day Two At The U.S. Supreme Court

Arguments on Day 2 at the United States Supreme Court on Obamacare (Department of Health and Human Servs. v. Florida) are fascinating and on audio. [1]

The key questions on the constitutionality of Obamacare's individual mandate are:

1.

“Can you create commerce in order to regulate it?”
— Justice Anthony Kennedy, U.S. Supreme Court, Tuesday, March 27, 2012, addressing U.S. Solicitor General Don Verrilli on his defense of the portion of the Patient Protection and Affordable Care Act that requires all Americans to purchase health insurance. [2]

2.

“What is left? If the government can do this, what, what else can it not do?
— Justice Antonin Scalia, U.S. Supreme Court, Tuesday, March 27, 2012, asking U.S. Solicitor General Don Verrilli what limits the government might have if the PPACA’s requirement that all citizens purchase health insurance is found constitutional. [2]

The defense: In my opinion, there is none that would pass constitutional muster or even on moral grounds because the coverage is not limited to emergency health situations but includes contraception and general wellness.

I predict that the individual mandate will fail by more than a 5-4 margin. I think Justices Kennedy and Bader-Ginsburg will side with individual freedom, leaving the two Obama appointees to argue some kind of fiction to uphold Obamacare.

Tomorrow's hearing is on the severance clause. There was one originally but it was taken out in the final version of the bill. The issues is whether the rest of Obamacare can stand without a severability clause if the individual mandate fails. No prediction on this yet.

The first day was on the issue of whether the penalty on the individual mandate, effective in 2014, is a tax, i.e, you will have to pay a penalty starting in 2014 if you do not buy health insurance as mandated under Obamacare. If the 2014 penalty is a tax, then "the Anti-Injunction Act, an 1867 law that says taxpayers can't challenge a tax until it's collected," [3] and the case would not be ripe for judicial review. On this issue, I think there could be a unanimous ruling that the individual mandate is a penalty and not a tax and therefore Obamacare will be decided on the merits before the November presidential election. The audio on Day 1 of Obamacare at the U.S. Supreme Court is not that exciting and may well serve as a sleep aid. [4]


[1] Listen to the oral arguments here -- http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Tuesday

[2] http://ifawebnews.com/2012/03/27/justices-question-constitutionality-of-obamacares-individual-mandate/

[3] http://online.wsj.com/article/SB10001424052702303816504577305783436646466.html?mod=googlenews_wsj

[4] http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Monday