Obamacare Showdown: Preview, Part 2

[Valin]

Ricochet:

Adam Freedman

3/21/12

 

Next Tuesday, the Supreme Court hears arguments on the constitutionality of the individual mandate. (The Justices will be coming down from the high of Monday’s argument about the Anti-Injunction Act, described in my earlier post).

 

(Snip)

 

The Obama administration follows the script penned by congressional Democrats, that the ACA is an exercise of Congress’s power to regulate “commerce . . . among the several states.” Granted, unless your doctor happens to live in a different state, most individual healthcare transactions do not take place “among the several states.” Unfortunately, we continue to live under the awful precedents of the New Deal when the Supreme Court held that Congress has the power to regulate economic activity that, in the aggregate, will affect interstate commerce. Most infamously, in 1942, the Court upheld New Deal regulations that dictating the amount of wheat a person could grow for his own family’s consumption! (Wickard v. Filburn). And if the ACA is a constitutional regulation of interstate commerce, then the mandate “is within Congress’s power to enact not because it is a necessary component of a broader scheme of interstate economic regulation.”

 

(Snip)

 

The main brief opposing the individual mandate (submitted by 26 states) points out that forcing people to buy insurance is not a “regulation of commerce.” The main brief says: “The individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power does not exist.” If regulating inactivity were a “necessary and proper” means of regulating commerce, they argue, we would expect to see more of it, but in 220 years, Congress has never required individuals to purchase particular goods or services as a condition of being alive. The government, of course, denies that it is trying to regulate inactivity; rather, they repeat the argument they sold to several lower courts, that the mandate regulates “economic decisions.”

 

(Snip)

 

TAS

[Valin]

Obamacare Showdown: Preview, Part 3

Adam Freedman

3/22/12

 

This is the third in my series of posts about the major issues at stake in next week’s arguments at the Supreme Court regarding the constitutionality of Obamacare, or, the Affordable Care Act (ACA). Yesterday, I discussed the “individual mandate,” the part of ACA that creates a legal duty to obtain health insurance. Yes, the government has some arguments up its sleeves and, sadly, can rely on some New Deal-era precedents, as well as more recent cases (like the medical marijuana case, Gonzales v. Raich) to support the mandate. But of course, I think the opponents of the mandate have the better of the argument.

 

If the Court does strike down the individual mandate, what happens to the rest of ACA? The law is over 2,700 pages long – suffice it to say there’s a lot in there besides the individual mandate. However, the individual mandate is the part that is supposed to make the whole thing affordable. By requiring younger, healthier individuals to get health insurance, ACA aims to broaden the insurance pool and thus bring down premiums. (Of course, many others have pointed out that Obamacare will do no such thing; in fact, premiums are rising in anticipation of 2014 ... but I leave the policy arguments aside for now).

 

It’s very common for federal statutes to include a so-called “severability clause,” which states that if any provision of the law is found to be invalid, the rest of the law will continue in operation. But the ACA does not have a severability clause, so there is no clear answer as to whether Congress intended the healthcare law, or parts of it, to survive even without the individual mandate. In one ruling, Senior U.S. District Judge Roger Vinson held that Congress intended all of Obamacare to hang together. Therefore, since Vinson found the mandate was invalid, he also concluded that the entire statute must fall. On appeal, the Eleventh Circuit agreed that the individual mandate is unconstitutional, but the Court held that the rest of the ACA could survive. The fact that Congress failed to insert a severability clause, said the Court, is not decisive. At SCOTUS, the states' briefs have generally picked up Judge Vinson's argument that the components of the ACA are too inter-connected to be upheld if the mandate is struck down.

 

(Snip)

 

(Note: Highly recommend reading the comment by KC Mulville)

[clearvision]

This will be interesting.