Thursday, November 17, 2011

Understanding the Supreme Court Obamacare Review

The news came down earlier this week:  the Supreme Court will take up President Obama's signature piece of legislation, Obamacare, during this current session, meaning a ruling can be expected by summer of 2012.  (1) Conservatives are celebrating, and for some odd reason so is the Obama Administration. 

The former I understand, the latter I do not, save for one possibility: Obama knows Obamacare is bad for his re-election, and hopes it is overturned so he can get credit for trying without experiencing the bad effects of having the law pinned to him.  When Obamacare is brought up he can simply say "it's a dead issue, the Supreme Court overturned it, but hey, we tried."  It's classic liberalism: compassion of intent matters, compassion of result does not.

How this will play out is an interesting question.  I believe we can expect Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito to vote Obamacare as Unconstitutional and Justices Ruth Bader Ginsberg, Steven Bryer, Sonia Sotomayor, and Elena Kagan ((hopefully she’ll recuse herself due to her previous involvement with the law) to vote that Obamacare is Constitutional.  So the swing vote is Justice Anthony Kennedy.

Personally, I expect Kennedy to join his fellow Republican appointees in striking down Obamacare.  First and foremost, Kennedy has a strong history of being in favor of states' rights and individual liberty.  So this bodes well for those of us who want to see Obamacare struck down. Although Kennedy has had moments of breaking with the conservative movement, but these are on issues centered around personal liberty over traditional conservative morality.  Honestly, I would be very surprised to see Kennedy vote to uphold Obamacare based on his history. 

There are multiple discussions scheduled for this review.  I think Kennedy is likely to vote against the law on three of the four, meaning the law is overturned. From, here are the Writs of Certiorari to be reviewed:

* The issue of “severability” of the insurance mandate from the other provisions of the law, if the mandate is nullified (the only question in National Federation of Independent Business v. Sebelius [docket 11-393] and question 3 in Florida, et al., v. Department of Health & Human Services [11-400]).
For those of you from Palm Beach County, this means judging whether or not the Individual Mandate, which requires all Americans to buy health insurance, is required for the law to exist.

Gun to my head I'd predict that Kennedy will join the other Justices who were appointed by Republicans to see that, without the individual mandate, the law is basically useless based upon it's own intentions, but I cannot predict that with certainty.

* The constitutionality of the insurance mandate (question 1 in the government case, Department of Health & Human Services v. Florida, et al.)

For those of you from Palm Beach County, that means, regardless of whether or not the Individual Mandate is "severable" from the law, whether or not government can force people to purchase ANYTHING.

Given Justice Kennedy's history of supporting individual liberty over all else, I doubt he will consider this Constitutional.  For those who are still wondering why government can "require" us to purchase auto insurance, please understand this is a requirement to use the public roads, just like a driver's license is also required to use the public roads.  This is very different from requiring a purchase to live in the country.  As so many have said before, you might as well mandate purchase of a house to solve the homelessness problem.

Whether the lawsuit brought by the states challenging the insurance mandate is barred by the (Tax) Anti-Injunction Act (an added question in the government case, 11-398), one hour of oral argument.

The Tax Anti-Injunction Act says that Federal Courts may not stop collection of a tax by either Federal or State governments that were duly passed by Congress or the legislatures of the States. Of course, the President repeatedly stated when attempting to pass the law that Obamacare was not a tax, yet now they are arguing that the individual mandate is within the Congressional authority to levy taxes.  But it is not a tax, they said so themselves, stating that it was just like requiring people to purchase auto insurance. 

I expect Kennedy to vote this part of the law down again, citing the President's own statements on the law, thus meaning the Tax Anti Injunction Act has zero bearing on the case.


Granted, the constitutionality of the Medicaid expansion (question 1 in the Florida, et al., v. Department of Health and Human Services case, 11-400).

The specific challenge here is whether or not the Federal government has the authority to require states to expand Medicaid.  Again, given Kennedy's long history of supporting states' rights, I do not see him voting it Constitutional at all.

In short, I expect Justice Kennedy to join Justices Scalia, Thomas, and Alito and Chief Justice Roberts in voting three of the four Writs of Certiorari as Unconstitutional, and as for the fourth, if the law is Unconstitutional, who cares if the Individual Mandate is severable?

Long story short, I believe Obamacare's days are numbered.  Thank God.


(1) ObamaCare reaches the Supreme Court

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