Thursday, March 29, 2012

Obamacare And The Supreme Court

In case you missed it, Obamacare has reached the Supreme Court.  In the most historic hearing since the Brown v. Board of Education case, all nine Justices heard a couple hours of testimony on three consecutive days this week.  At stake is nothing less than the direction and core nature of America as we move forward.

First, a couple side notes.  Over half (26) of the states have sued the federal government over the constitutionality of Obamacare.  One of the Justices, Elena Kagan, actually helped create the law, so according to the entire history of the American legal system and every reasonable measure of legal ethics and precedent, Kagan should have recused herself from this case.  She didn't, revealing that the liberal members of the Court have absolutely no interest in upholding the Constitution but rather in simply pushing forward a liberal agenda.  Also, now that pieces of the law have been implemented, and as we're drawing closer to the whole enchilada going into effect, the cost estimates of what this 'free' health care is going to cost American taxpayers has doubled - $1.76 trillion over 10 years.  It also contains 17 new taxes and will be enforced by thousands of new IRS agents.  And lots of other failed policies, too.  Oh yeah, and in the two years since Obamacare was passed into law forced down America's throat against its will, support for repeal dropped below 50% only once, and has generally remained in the mid- to upper-50s.  America didn't want this two years ago, and America still doesn't want it now.

That sets the stage - now let's look at the actual current events.  There are a zillion links and articles out there about these three days of hearings, but I'll try to just hit the high points.  The first day was over something that most normal people aren't going to care about, but it was some legal wrangling that could have stopped the whole thing from proceeding.  It didn't, so let's move on to Day 2.  Boiling it down, there are two key questions that the Supreme Court has to decide:

1. Is the individual mandate -- the legal requirement for everyone to purchase health insurance or face fines and jail time -- constitutional?
2. If the individual mandate is ruled unconstitutional, will the rest of the law be struck down or remain standing?

The Obama administration's argument is that the government can force every American to purchase a product (i.e. health insurance) because of the Commerce Clause, which states that the government is legally allowed to regulate commerce.  The opposition states that this is an overreach of government authority, and that the Constitution does not, in fact, authorize the government to require citizens purchase a product if they choose not to.  The government's argument was torn apart by the bench.  Justices fired questions as the administration's lawyers, asking whether the government can legally force Americans to purchase broccoli, or cell phones using the same legal reasoning as the administration's case.

It went badly for the Obama administration, prompting an increasing number of knowledgeable observers to think it's going down.  So badly, in fact, that the primary lawyer, Solicitor General Donald Virrilli, Jr., has been soundly lambasted for botching the government's case.  Of course, given that he had no great case to start with, that's hardly a surprise, but he's still going to take the lion's share of the blame if the law does go down.

The liberal Justices did their best to defend the government's case, but the conservative Justices carried the day.  Even the 'swing vote', Justice Kennedy, seemed skeptical of it, saying:
But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.


This is the crux of the matter on the mandate.

The problem here is that if the mandate is struck down, no one (not even the Obama administration) can make the numbers work out to make this program even appear to be plausibly affordable.  Even the slanted projections (which have been ripped to shreds by reality, as I mentioned above) that the Obama administration and other supporters use completely fall apart if 100% of American taxpayers aren't forced to pay into the system.  If insurance companies are required to provide coverage, but there isn't enough money to adequately fund the program, then those insurance companies will inevitably go out of business, leaving a vacuum that can only be filled by...da da dum...!  The government.

Thus, some people think the terribly performances before the Supreme Court are actually part of the scheme:
[if] the mandate goes away but the rest of the law remains in force...that makes private health insurance economically unviable, and the insurance companies will all exit the business or they will go out of business. At which point the Democrats will try to implement “single payer”, a total nationalization of the entire health care industry, financed by a huge rise in taxes.

Single Payer is what they always wanted. The bill wasn’t originally written that way, though, because they knew that even with twin Democratic majorities, there was no chance of passing it. So they included the mandate instead.
If the mandate is struck down, then Congress will have to act. There won’t be any way to repeal the rest of the law because Obama will veto, and the Senate will sustain the veto. The only thing he will agree to is implementation of single payer.
That’s why the arguments yesterday and today were feeble: Obama wants to lose
Now we come to Day 3, and the issue of severability.  The nutshell here is that if the mandate is struck down, would that cause the collapse of the whole rest of the bill, or not?  Again, things went badly:
The more liberal justices were clearly hostile to the arguments being made by Paul Clement on behalf of the challengers that the entire statute must be struck down. However, other justices, including Chief Justice Roberts and Justice Kennedy, were obviously concerned that the complex scheme designed by Congress will not work as intended by Congress without the individual mandate – which is the “heart” of the law as Justice Scalia and others later referred to it – and thus they may need to strike down the entire law if the mandate is unconstitutional.

Justice Scalia turned the tables on Deputy Solicitor General Kneedler’s argument that Congress could simply fix any gaps in the law if the Court left the rest in place.  Justice Scalia explained that legislative inertia would prevent a bare majority from repealing the law or changing it with the mandate gone, even if that is what a majority wanted with the mandate gone.   Thus, the Court would put its thumb on the scale one way or the other, and it simply had to decide what the Congress that enacted ObamaCare would have wanted, not the next Congress.

Justice Kennedy several times expressed concerns for the risks the insurance industry would suffer if the Court did not strike down more of the law, asking if anyone could guarantee the insurance industry would not suffer great losses.  Justice Alito chimed in that there would be $350 billion losses without the mandate, and asked whether Congress wouldn’t want the entire law struck down.


Several justices also expressed concern that striking down just the individual mandate would cause enormous economic costs that could damage the insurance market since the mandate is tied to a variety of other reforms, including the guaranteed issue and community ratings policies forced on health insurance companies.

In fact, Justice Scalia said that those provisions were in the law “in anticipation” of the mandate and that it would “bankrupt the insurance companies, if not the States, unless this minimum coverage provision comes into effect.”

Even Justice Sotomayor pointed out that “the congressional findings and all of the evidence Congress had before it that community ratings and guaranteed issuance would be a death spiral…without minimum coverage.”
Bottom line analysis:
There is no doubt that what has shocked supporters of ObamaCare over the past three days has been the skepticism that the justices have expressed over the constitutionality of ObamaCare.  Liberals are simply astonished at the idea that anyone would take the Constitution and the enumerated powers doctrine seriously.  But the best evidence in the courtroom over the last three days is that the justices will uphold the Constitution by striking down a clearly unconstitutional law.
Always one to look at the bigger picture, Rush Limbaugh offers this very poignant commentary:
Now, folks, the Wall Street Journal today called yesterday "a constitutional awakening."  And at first glance you might say, "Yeah, yeah. Okay." Because what happened yesterday?  What happened yesterday was a bunch of people thought that this was a slam-dunk that it would be declared constitutional, including the mandate. And the court went the way it did during oral arguments and all of the "learned" people were shocked and stunned and couldn't believe it and sunk into immediate depression. The Wall Street Journal says: Well, we had a "constitutional awakening."  I would beg to differ.  The "constitutional awakening" is the Tea Party.  The Tea Party was the "constitutional awakening" in 2009 and 2010.

The Tea Party voting in the midterms in 2010, that's the "constitutional awakening."  The election was a "constitutional awakening."  The fact that we hang by a thread here in the Supreme Court is not a "constitutional awakening."  What this is... And this is my point of the whole show so far. This oral argument -- these hearings, whatever you want to call 'em -- is evidence of the deterioration of the rule of law in this country.  We are hanging by a thread! More than likely we're hanging by the vote of one man, one Supreme Court justice. I don't care if it's Kennedy or whoever. Just the fact that one person out of 311 million decides this? That's not a "constitutional awakening."  This is evidence of how far we have sunk if you ask me.  No, I'm still glad it happened. Don't misunderstand.  I'm just still in a state of shock that we have gotten here.  I'm still in a state of utter disbelief that we have arrived at this point. 
But we have, and we are here.

All in all, it looks pretty grim for supporters of Obamacare.  One never knows, of course, what the Supreme Court will ultimately decide.  And, honestly, no matter what direction they go, there will be more legal wrangling in the months and years to come.

The point, I think is that this will be one of the most historic legal decisions in decades, if not longer.  It will fundamentally shape how the government interacts with the individual American citizen.  If the government can legally require every American citizen to purchase a certain product, then the government can legally require every American citizen to purchase any product it chooses.  Plus, everything can be related in some way to a person's health, so by controlling the health care products and services that people are allowed to get, the government controls essentially everything about that person's life.

Welcome to the Obama era, a liberal utopia of government control.

Unless the Supreme Court has something else to say on the matter, that is.  Let's hope and pray for that outcome, and the restoration of the United States as a free and prosperous nation of individual liberty.

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