Next week, almost exactly two years after the Patient Protection
and Affordable Care Act (PPACA) was foisted on an unwilling
electorate by a combination of congressional skullduggery and
presidential hubris, the Supreme Court will finally condescend to
hear oral arguments concerning the constitutionality of the
unpopular health “reform” law. March 26, the first of three days
during which representatives of various litigants will be permitted
to enter the exalted presence of the justices and actually speak,
will be devoted to one of the more arcane questions associated with
the legal challenges to Obamacare — whether the Anti-Injunction
Act (AIA) deprives the Court of jurisdiction to decide the case at
this time.
The AIA bars legal challenges to taxes before the IRS has
attempted to collect them, and PPACA’s individual mandate doesn’t
go into effect until 2014. Thus, despite the President’s emphatic
denial that the penalties associated with the mandate constitute a
tax — a position reiterated last month by acting OMB
director Jeffrey Zients — and a prior
concession by the Department of Justice (DOJ) that AIA does not
apply to the cases before the Court, the administration now wants
the justices to decide if it presents a “jurisdictional bar.”
Considering the outrageous record of the Obama DOJ, one is tempted
to interpret this brazen flip-flop as a hint to the Court that it
should use AIA as an excuse to stay out of the presidential
election.
If that seems farfetched, consider what will be happening
outside on the steps of the Supreme Court building. As the New
York Times
reports, “White House officials summoned dozens of leaders of
nonprofit organizations that strongly back the health law to help
them coordinate plans for a prayer vigil, press conferences and
other events outside the court when justices hear arguments for
three days beginning March 26.” The same presidential
administration that has used PPACA as a pretext to launch the most
outrageous attack on religious liberty since the republic was
founded, the anti-conscience mandate, will line up as many
quislings as it can assemble and have them pray for the salvation
of Obamacare.
And it may well take divine intervention to save it. The
day after the government’s lawyers attempt to justify their latest
pirouette on AIA, the real show begins. The 27th will be devoted to
arguments involving the administration’s claim that not buying
insurance somehow constitutes interstate commerce that may be
regulated by Congress. This Orwellian nonsense has been rejected by
three district court judges and the Eleventh Circuit Court of
Appeals. The majority in the latter decision included a Clinton
appointee who wrote that the mandate is “breathtaking in its
expansive scope.… Congress [has] never sought to require the
purchase of wheat or war bonds, force a higher savings rate or
greater consumption of American goods.”
Even ordinary voters, whom CNN’s John King famously told
us during one of the GOP debates “don’t pay attention to what’s
going on in the world until they have to,” have apparently attended
closely enough to understand that the mandate is a dog that won’t
hunt. As Ammon Simon
points out, public opinion surveys consistently show that a
majority of Americans believe it to be unconstitutional. A USA
Today/Gallup Poll recently showed that Americans think the
mandate is unconstitutional by a margin of 72 percent to 20
percent. The Kaiser Health Tracking Poll recently found that a mere
17 percent of the allegedly inattentive electorate say they think
it should be found constitutional by the Supreme Court.
It’s doubtful that such surveys matter much to the
justices. Legal precedents, however, matter a great deal to them.
And, the countless whoppers of the White House and DOJ
notwithstanding, the precedents work in favor of the plaintiffs
where the mandate is concerned. As Jason Mazzone of the Brooklyn
Law School wrote
last year in the New York Times, “All of the Supreme Court
cases upholding Congress’s power under the Constitution’s
interstate commerce clause have involved Congress regulating some
kind of activity that is already occurring… [P]arsing the
distinction between activity and inactivity provides a way for the
justices to strike down the individual mandate without having to
overturn any precedent.”
The 28th will be devoted to the commandeering and
severability issues. The former is important because PPACA’s
expansion of Medicaid places an unsustainable fiscal burden on the
states, but the main event of this final day of oral argument will
be about the latter. The Democrats,
you will recall, failed to include a severability clause in
Obamacare. This, in theory, means that the Court must invalidate
the entire law if it strikes down the mandate. If the justices
follow the example of U.S. District Judge Roger Vinson, PPACA is
toast. Unfortunately, the precedents aren’t as clear on this issue
as one might wish. The justices have
demonstrated a willingness to ignore the absence of
severability language when it suits them.
The mandate, however, is such an integral component of
PPACA that it simply cannot be extracted without making nonsense of
the statute, wrecking the health insurance industry and wreaking
havoc throughout the U.S. health care system. All of the litigants
in the case, including the administration, agree that ObamaCare
will not work without the individual mandate. Secretary of Health
and Human Services Kathleen Sebelius has frequently described the
mandate as the law’s “linchpin.” And, as constitutional scholar
Randy Barnett has
pointed out, it was included in Obamacare precisely because of
“Congress’s finding that the mandate was ‘essential’ to its scheme
of regulating insurance companies.”
In other words, to strike down the mandate without
invalidating the entire “reform” law would amount to an egregious
dereliction of duty. And yet the Court has been inundated with
amicus briefs from all manner of interested parties, including
AARP, the National Council on Aging, the American Public Health
Association, the American Benefits Council, the American Academy of
Actuaries, Michigan Legal Services and countless others imploring
the justices to do just that. Boiled down to their essence, these
briefs echo a piece that appeared last week in the New England
Journal of Medicine whose authors argued that
deeming the mandate non-severable “would mean overturning a
historic piece of legislation whose passage required enormous
political effort.”
Such spurious and irrelevant nonsense may indeed justify a
prayer vigil, but not the kind of PR stunt the White House has in
mind. A call on Providence to shield the justices from the
influence of self-serving entities like AARP may not help, but it
couldn’t hurt. Most of the “nonprofit” organizations that will be
represented on the steps of the Court next week won’t be there
because they care about patients. And they certainly don’t care
about the Constitution. Like the Obama administration itself, these
outfits are in it for the money and power. To see them thwarted by
supreme beings, black-robed or otherwise, is a ruling devoutly to
be wished.
