When the passage of Obamacare spawned dozens of legal challenges to the law’s constitutionality, the Democrats and their accomplices in the “news” media dismissed these lawsuits as frivolous publicity stunts. Some actual courts, however, took a different view. One district court ruled the law’s individual mandate unconstitutional and another struck down the entire statute. When the DOJ appealed these decisions, the Fourth Circuit Court of Appeals upheld the mandate but the Eleventh Circuit struck it down. The latter ruling was unsatisfactory to both parties, who filed appeals with the Supreme Court just as that august body was being inundated with a spate of petitions involving a variety of other Obamacare cases. Yesterday, therefore, the Court agreed to hear arguments concerning several issues raised by these lawsuits.
Few informed observers were surprised that the Supremes decided to take up Obamacare. The Court’s order did, however, contain a couple of features that not even the most sophisticated constitutional scholars expected. Of these, the most surprising was the amount of time the Court allotted for oral arguments. No fewer than five-and-a-half hours have been set aside for that purpose. According to Lyle Denniston, who has been reporting on the Supreme Court for decades, “The allotment of 5 1/2 hours for oral argument appeared to be a modern record; the most recent lengthy hearing came in a major constitutional dispute over campaign finance law in 2003, but that was only for 4 hours.” The Court will allow two days for oral arguments, although the actual dates haven’t been set, and there will be four questions at issue.
The most predictable of these questions will involve whether Congress possesses the power to enact the individual mandate, and it will be allotted two hours. This is the issue that has been raised in virtually every challenge to Obamacare. The government maintains that the Interstate Commerce Clause of the Constitution authorizes the federal government to order all Americans to buy health insurance. The plaintiffs in Florida v. HHS and numerous other challenges to the “reform” law assert that even the broadest interpretation of that clause does not permit Congress to regulate “inactivity.” In other words, it may allow the government to prevent a citizen from engaging in an “activity” like growing medicinal marijuana, but it cannot possibly authorize Congress to regulate something a citizen is not doing — like failing to buy insurance.
A closely related issue that has been allotted 90 minutes of oral argument concerns whether the individual mandate is severable from the rest of the law. In their headlong rush to ram “reform” down America’s throat, congressional Democrats and their accomplices at 1600 Pennsylvania Avenue neglected to include a severability clause in Obamacare. The object of such language is to ensure that, if some part of a law is declared invalid in court, the remaining provisions stay in force. For reasons highlighted by Obamacare and its mandate, severability clauses are routinely inserted in most important pieces of legislation. It was the absence of severability language that led U.S. District Judge Roger Vinson to strike down the whole of Obamacare when he found that the mandate was unconstitutional.
A third question to which the justices have allotted one hour involves the Anti-Injunction Act (AIA), and whether it bars any challenge to the individual mandate before it takes effect. The government’s argument on this issue ought to be fascinating. When the legal challenges to Obamacare started to materialize, the government’s lawyers attempted to argue that the mandate and its penalty were, in effect, a tax. But they couldn’t sell it, partially because of denials by the President and a conspicuous effort by Congress to avoid the “T” word while writing the actual legislation. Eventually, the Obama administration conceded that “the Anti-Injunction Act is not applicable” to the mandate question. Nonetheless, the DOJ executed another flip-flop and reintroduced the AIA question in its petition to the Court.
The final issue the Court wants to hear about, and to which it has allotted an hour of oral argument, is the other feature of the Court’s order that raised a few scholarly eyebrows. It concerns Obamacare’s expansion of Medicaid and if it amounts to a “commandeering” of the states. The issue is raised in Florida v. HHS, whose plaintiffs maintain that the fiscal pressure associated with that expansion is so coercive as to be unconstitutional. This claim, however, has failed to get any traction in the courts. As legal scholar Bradley Joondeph puts it, “There is no split on the question, and no lower court judge has yet voted to uphold the states’ claim.” Presumably, however, the Court recognizes that the federal government attaches so many strings to its portion of Medicaid funding that it can effectively control how states budget their funds.
The “commandeering” claim, like the other three arcane issues the justices want addressed, will probably be argued before the Court during the last week of March. During the interim, there will no doubt be a good deal of bandwidth wasted in the “news” media and in the blogosphere on a variety of sideshows. There will, for example, be ridiculous demands from the left for Clarence Thomas to recuse himself because his wife has spoken out against Obamacare. There will also be much more substantive demands from conservatives for Justice Kagan to recuse herself pursuant to her role in preparing the legal strategy for defending the “reform” law in court. In the end, however, it’s doubtful that either Thomas or Kagan will decline to participate in such an important case. Such momentous cases are, after all, what these people live for.
The final decision, by all accounts, will be handed down sometime in June. And, regardless of whether ObamaCare is struck down in part or in its entirety, it will definitely have an effect on the election and the Court will once again be accused of playing politics. Both parties will attempt to use the outcome to their advantage. The only safe prediction that one can make about the ruling or its political effect is that no one will describe either as “frivolous.”