Saturday, March 24, 2012

Supreme Court to hear Obamacare case this week

Next week the long awaited Supreme Court hearing on the Affordable Care Act, better known as Obamacare, will finally take place. The hearing comes just over two years after the law was passed. In a rare move, the Court is scheduling three days of oral arguments for the various aspects of the Affordable Care Act case. Typically, the Court hears two one-hour oral arguments each day that it is in session.

The Court has consolidated six lawsuits against the government about the Affordable Care Act. Four questions will be addressed. First, the Court will decide whether the Anti-Injunction Act means that the Court has no jurisdiction until the ACA goes into effect. The Tax Anti-Injunction Act of 1867 holds that a person protesting a tax in court must first pay the tax. The government’s position is that the fines that are levied as part of the individual mandate is a tax and therefore the court cannot hear the lawsuit against the tax until it is assessed. The individual mandate does not go into effect until 2014. The flaw in this defense is that President Obama and the Democrats specifically denied that the fine was a tax before the bill passed.

Second, the Court will address the question of the individual mandate, called the “minimum coverage provision” in court filings. The government holds that the Constitution’s Commerce Clause gives it the right to regulate the health insurance industry. Opponents argue that the failure to purchase health insurance is not commerce and therefore cannot legally be regulated by the federal government.

The government also argues that the mandate is also permissible under the Necessary and Proper Clause. Opponents argue that the Necessary and Proper Clause does not give the federal government the power to enact legislation that is otherwise unconstitutional because it is not among the powers granted to the government by the Constitution.

Next, the Court will determine whether the individual mandate is severable from the rest of the law. Generally, laws contain a severability clause that says that if any part of the law is found unconstitutional, the remainder shall remain in force. The ACA, for whatever reason, does not contain such a clause. Therefore, opponents argue that if the mandate is deemed unconstitutional then the entire law must be struck down. The government will argue that the rest of the law should stand even if the mandate is struck down.

Finally, the Court will hear whether ACA’s expansion of Medicaid places an unconstitutional burden on the states. Under the ACA, the states are required to expand Medicaid eligibility to an estimated 16 million people according to Yahoo. States that refuse will lose matching federal funds for their Medicaid programs. Twenty-six states have filed suit claiming that the Medicaid expansion is an unconstitutional violation of the Tenth Amendment, which states that powers not delegated to the federal government are reserved to the states and the people. Georgia is a party to this lawsuit.

Proponents of the law argue that courts have supported Congress’ ability to mandate that the states carry out programs that are paid for by federal money. They also note that the Medicaid expansion is paid for by federal funds for the first ten years.

Americans remain split on the Affordable Care Act. According to a recent USA Today/Gallup poll, 45 percent believe that it was a good thing that Congress passed the law versus 44 who believe it was bad. However, most believe that the law will make things worse for their family by a margin of 38-24 percent. An astonishing 72 percent Americans believe that the individual mandate is unconstitutional.

Public opinion notwithstanding, the decision is likely to be 5-4 in one direction or the other. The Court’s four liberals, Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, are almost certain to vote in favor of the health care law. The Court’s four conservatives, John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito, are just as likely to vote to overturn it. That leaves Anthony Kennedy, appointed by President Reagan but often a swing vote, as the likely deciding vote.

Regardless of the outcome, the decision will affect almost all Americans. The public will have to wait for the outcome, however. Even though the Court will hear arguments in the first three days of next week, a decision on the case may not be published for several months. Most decisions are not issued until the last months of the term: May, June and July.


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