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.