Court skeptical of tax argument on mandate?

posted at 12:45 pm on March 26, 2012 by Ed Morrissey

And not just the conservative justices, either — and that spells trouble for Barack Obama and his defense of ObamaCare.  Philip Klein reports from the arguments being made at the Supreme Court today on the health-care reform plan, and the main argument for the constitutionality of its core individual mandate came under attack from the liberal wing of the court:

On the first day of oral arguments in the case challenging President Obama’s national health care law, justices seemed skeptical that the individual mandate should be considered a tax — one of the main consitutional defenses being offered for the law.

To be clear, today’s 90 minutes of oral arguments did not concern the underlying merits of the case, but whether an 1876 law called the Anti-Injunction Act bars the Court from ruling on the suit at this time. Under the Anti-Injunction Act, people cannot challenge a tax in court until after they have paid it, something that would effectively punt the issue until at least 2015. However, there is some overlap between this question and the idea of whether the mandate is a tax, and justices on both sides of the ideological fence expressed skepticism that the mandate should be treated as a tax.

“This cannot be a revenue raising measure, because if it’s successful, there won’t be any revenue raised,” said Justice Ruth Bader Ginsburg of the mandate.

Another liberal on the court, Justice Stephen Breyer, said of Congress’s description of the fine for non-compliance with the mandate, “They called it a penalty and not a tax for a reason.”

Why does this matter?  Congress cannot mandate a penalty for failing to engage in commerce — but it does have the power to tax.  Despite Obama’s protestations during the ObamaCare debate that the mandate was not a tax, his team has been forced to argue that it in fact does qualify as a tax, since that’s the only basis on which Congress can impose such a mandate.  Most people believed that the conservative jurists on the court would object to that definition, but this looks as though skepticism on the constitutionality of the mandate goes wider than first thought.  If Ginsburg and Breyer don’t buy the tax argument, the mandate will get overturned — and not by a 5-4 vote.

Alito closed the loop on the question:

Justice Sam Alito asked Verrilli whether he could point to another case in which courts identified something as not a tax for the purposes of the Anti-Injunction Act while still ruling it was a constitutional exercise of taxing power. Verrilli could not name any.

That doesn’t bode well for ObamaCare advocates.  If the mandate gets struck as a constitutional overreach, then regardless of whether the Supreme Court finds severability or not, the entire structure of ObamaCare collapses.  It will hasten momentum for its repeal, and insurers will switch sides to demand its complete rejection.

I’d tell you to watch for more signals, but of course, you can’t.  The Supreme Court rejected requests to televise arguments today, but two polls show that Americans overwhelmingly think that the proceedings should be viewable.  USA Today/Gallup shows that 72% want the arguments televised, including 70%+ among Republicans, Democrats, and independents.  C-SPAN, which would have been the likely broadcaster for such an event, has a poll showing 74% support for televised hearings — and 95% who want the Supreme Court to be more transparent in its proceedings in general.


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0bama has the arrogance to stuff the Court, and run right over Congress while doing so.

cane_loader on March 26, 2012 at 1:40 PM

It would still take 51 senators to confirm his choices. I’m sure there are 4 Dems out there who would vote no on anyone Obama sent for confirmation in this scenario. In an election year, probably 10 Dems.

angryed on March 26, 2012 at 1:42 PM

Why does this matter? Congress cannot mandate a penalty for failing to engage in commerce — but it does have the power to tax. Despite Obama’s protestations during the ObamaCare debate that the mandate was not a tax, his team has been forced to argue that it in fact does qualify as a tax, since that’s the only basis on which Congress can impose such a mandate. Most people believed that the conservative jurists on the court would object to that definition, but this looks as though skepticism on the constitutionality of the mandate goes wider than first thought. If Ginsburg and Breyer don’t buy the tax argument, the mandate will get overturned — and not by a 5-4 vote.

Ed, a few things:
1) Today’s arguments have little to do with whether the mandate is unconstitutional, the only issue before the court was whether the Anti-Injunction Act deprives the Court of subject matter jurisdiction over the cases. In other words, the issue today as whether the Court can hear the case, not whether Obamacare is unconstitutional.
2) If the mandate is not a tax under the AJA, that doesn’t mean it’s not a tax for purposes of Article I (in fact, that’s what the government is arguing).
2) Even if the Court does decide the mandate is not a tax under Art. I, that certainly doesn’t mean “that’s the only basis on which Congress can impose such a mandate.” The government has always relied principally on the Commerce Clause as augmented by the Necessary and Proper clause, not the taxation power.

It’s good that the Court seems ready and willing to reach he merits, but it’s far too early to draw any conclusions about the Court’s propensity or lack thereof to strike down the mandate as unconstitutional. We should have a much better idea of that tomorrow.

righty45 on March 26, 2012 at 1:42 PM

I’d tell you to watch for more signals, but of course, you can’t. The Supreme Court rejected requests to televise arguments today, but two polls show that Americans overwhelmingly think that the proceedings should be viewable. USA Today/Gallup shows that 72% want the arguments televised, including 70%+ among Republicans, Democrats, and independents. C-SPAN, which would have been the likely broadcaster for such an event, has a poll showing 74% support for televised hearings — and 95% who want the Supreme Court to be more transparent in its proceedings in general.

WTF? This is utter nonsense. Don’t these SCOTUS justices watch American Idol? It ain’t fair in today’s world that we don’t get to watch the performances and get to call in to select our favorite performers. It is just simply unfair that these boring justices are the only one’s who get to judge the competition!

They are all ugly too. They need to start thinking seriously about the judges they use and making the show more people friendly if they want it to be a hit.

NotCoach on March 26, 2012 at 1:43 PM

I’m not sure why everyone is so quick to disregard ‘inthemiddle’s points:

Violina23 on March 26, 2012 at 1:24 PM

Because they’re idiotic.

eyedoc on March 26, 2012 at 1:43 PM

I’d like to see a compromise on the whole cameras-in-the-courtoom issue. It seems to me like there is a valid argument to keeping them out, and the biggest example is the OJ trial. Judges playing to the cameras and not to the evidence; high-profile case jurors with dollar signs in their eyes, etc.

However, there is also a valid open-government reason to have them.

So the simple compromise is: film court proceedings, but only release the recordings after the verdict is in.

HakerA on March 26, 2012 at 1:32 PM

I think another main reason is that the Justices do not want to have their images used for political purposes. Can you imagine if Elena Kagan were to say the following: “Explain to me how this law is Constitutional.”

You know the GOP would have all sorts of ads using that clip/soundbite. Do you want the justices having to parse their words and carefully phrase questions so as to appear impartial and apolitical?

oconp88 on March 26, 2012 at 1:44 PM

At its current trajectory, this election is shaping up to be all about the economy, and with the American people hearing over and over again that Jobs are O’s #1 priority and Republicans saying he is failing at it, does an economic rebound help the Prez?

oconp88 on March 26, 2012 at 1:39 PM

Unless he can get us to 5% unemployment and reduce the deficit, it ain’t happening for Mr. O.

Turtle317 on March 26, 2012 at 1:44 PM

The plan should simply say:

“The government will no longer provide funds for healthcare of any sort”

not going to happen ….
VA
&
TRICARE …
there are 2 cases that will/must stay …

conservative tarheel on March 26, 2012 at 1:45 PM

If Ginsburg and Breyer don’t buy the tax argument, the mandate will get overturned — and not by a 5-4 vote.

oh this is gonna be good

conservative tarheel on March 26, 2012 at 1:38 PM

That’s not correct. The Court could find that Congress had the power to implement the mandate pursuant to its power to regulate those things that have a substantial affect on interstate commerce (pursuant to the necessary and proper clause).

cjw79 on March 26, 2012 at 1:45 PM

It’s very tricky to read questions asked at oral argument for some idea where an appellate court will go. Sometimes justices want to vigorously challenge the position they ultimately want to take so they can be convinced of its soundness. Such an approach may make some sense in a very high-stakes case. Or judges may just want to discard some points to narrow the focus of the opinion. And they also could simply change their minds during the debate with the other justices behind closed doors. Don’t get me wrong, I think those questions can be a good sign, but I also would not be surprised if the liberal justices ultimately took the polar opposite position in their written opinions than the ones they implicitly held dear in their questioning of advocates.

R.J. MacReady on March 26, 2012 at 1:48 PM

If O-Care is struck down, do we immediately start to see businesses loosen up and spend money? We have seen them tighten up as they prepare for it. If so, what effect does it have on the economy in the run up to the election.

At its current trajectory, this election is shaping up to be all about the economy, and with the American people hearing over and over again that Jobs are O’s #1 priority and Republicans saying he is failing at it, does an economic rebound help the Prez?

oconp88 on March 26, 2012 at 1:39 PM

Even if everyone went all-in NOW back into bullish mode on the economy the effects wouldn’t be felt for more than 6 months, and would probably take a year for EVERYONE to notice. Economic downturns tend to get noticed a lot quicker and earlier than economic upturns.

That is not going to happen until it is clear that a second Obama term is not going to happen.

We aren’t going to get the Obamacare ruling until at least June/July, and even if it’s struck down I can’t see businesses considering it dead until the Regime that passed it is. Obama will demagogue the Supreme Court and promise to revive it, even without Congress, because “we can’t wait”. That will again scare investment out of business until it’s clear that Dear Leader is gone come January.

wildcat72 on March 26, 2012 at 1:49 PM

“Congress cannot mandate a penalty for failing to engage in commerce.”

Aren’t the lower courts split 50-50 on this exact issue?

MTF on March 26, 2012 at 1:51 PM

The questioning today was encouraging, but no one should trust Justice Ginsburg. In effect, she was signaling to the Solicitor General: steer clear of reliance on the taxing power tomorrow, because you ain’t got the votes.

As to the suggestion that upholding Obamacare is somehow good for the GOP this fall:

1. this is insane thinking; getting this monstrosity ruled unconstitutional is much more important than a single presidential election

2. an unconstitutional ruling helps any GOP nomineee, including Romney. Romney’s 10th amendment argument is validated; Romney is already making the point that Obama wasted 2 years of his political capital on Obamacare rather than improving the economy; and the Dems can never assert that Romney “doesn’t care about the uninsured” like every prior GOP nominee.

matthew8787 on March 26, 2012 at 1:52 PM

The Supreme Court became political the day they started writing law. Roe vs Wade being the most egregious example of it, though there were previous examples (Dred Scott and others).

You have to be intentionally blind or a liar to think that ideological prejudice isn’t what rules on the supreme court.

wildcat72 on March 26, 2012 at 1:24 PM

It can be political. It is not yet theater. That’s what those who want to live broadcast the proceedings want. I still contend that “ideological prejudice” is readily apparent when you have to explain your rationale the way the Supreme Court does. In that sense, it’s more transparent than the elected branches.

JDF123 on March 26, 2012 at 1:54 PM

I see the court case as a win for the right regardless of how the Court rules…

1. The case focuses on the issue again after a quiet couple of years
2. The issues are highlighted and today we KNOW the costs and schemes in it
3. If the Justices read the Constitution and kill it, the effort to remove remaining legislation will peak as well as the resolve to not let the left resurrect it under another guise
4. If the court ignores the Constitution and allows the scheme, the right will be energized beyond 2010 to kill it with legislation and punish legislators and Obama for passing the mess in the first place.

JIMV on March 26, 2012 at 1:55 PM

If Ginsburg and Breyer don’t buy the tax argument, the mandate will get overturned — and not by a 5-4 vote.

Oh, come on. The liberals on the bench and mindless retards who will vote together. and they certainly won’t vote to overturn something signed by a democrat president.

lorien1973 on March 26, 2012 at 1:55 PM

If Obamacare is ruled unconstitutional, the Left will never get the souffle to rise again in favor of another nationalized health care apparatus – at least for this cycle. They can try, but the coalition will never come together before November.

I am still astonished that Obama was determined to have the Supremes rule on this by summer, when all they had to do was to get the 11th Circuit to review the decision en banc, which would have put the Supreme Court review off until 2013.

matthew8787 on March 26, 2012 at 1:57 PM

At this point, I’d like to point out as I regularly do that even the “tax” argument is insufficient to satisfy the Constitution. Just because Congress has the authority to tax does NOT mean that it can spend the money on anything it wants. Congress is limited to only the spending items mentioned in the Constitution.

For example, while the Social Security TAX is Constitutional, spending the money as a retirement plan is NOT Constitutional.

dominigan on March 26, 2012 at 1:57 PM

So the simple compromise is: film court proceedings, but only release the recordings after the verdict is in.

HakerA on March 26, 2012 at 1:32 PM

That wouldn’t work either. I don’t have any problem with releasing audio after the fact, though.

Unfortunately (or not) we live in a visual world where pretty and healthy-looking people have a distinct advantage in just about everything, including perceived credibility.

The earliest example I can think of was the TV debates with Kennedy and Nixon. If you listened to just the audio, Nixon won on every question, hands down. If you watch the film, Kennedy wins. (and once you watch the film, just once, you will give the win to Kennedy forever).

Its hard-coded into our species to avoid odd looking things, especially food. If it looks bad, it probably is. Ergo, Nixon lost the minute the camera turned on. No makeup, and with his 5 o’clock shadow on a black and white tv:

“OMG, its Fred Flintstone….can’t vote for him”.

BobMbx on March 26, 2012 at 1:58 PM

The Anti-Injunction Act argument is absolutely silly and a complete non-starter. I’m frankly surprised the Court even allowed oral argument on the issue, let alone 90 minutes’ worth.

The big argument is going to be tomorrow morning. That’s the constitutionality of the individual mandate.

Outlander on March 26, 2012 at 1:58 PM

Aren’t the lower courts split 50-50 on this exact issue?

MTF on March 26, 2012 at 1:51 PM

Yes. This is the essence of the case! This was the biggest example of begging the question I’ve ever seen Ed post.

cjw79 on March 26, 2012 at 2:00 PM

That’s not correct. The Court could find that Congress had the power to implement the mandate pursuant to its power to regulate those things that have a substantial affect on interstate commerce (pursuant to the necessary and proper clause).

cjw79 on March 26, 2012 at 1:45 PM

There’s currently no portability of your individual health insurance policy between states now so how then can the law be said to regulate existing interstate commerce? And if it is allowed to become fully implemented, then there will ultimately be no interstate commerce bcuz we’ll end up with single payer to the government and that’s not any kind of commerce.

stukinIL4now on March 26, 2012 at 2:00 PM

It was chief justice Roberts who requested the Anti-Injunction Act argument. Getting his ducks in a row. Many believe this is part of his strategy to write the majority opinion striking down the mandate.

matthew8787 on March 26, 2012 at 2:01 PM

There’s currently no portability of your individual health insurance policy between states now so how then can the law be said to regulate existing interstate commerce? And if it is allowed to become fully implemented, then there will ultimately be no interstate commerce bcuz we’ll end up with single payer to the government and that’s not any kind of commerce.

stukinIL4now on March 26, 2012 at 2:00 PM

Scalia put it best in his concurrence in Raich, which is one reason I think the mandate will be upheld comfortably, perhaps by as much as 7-2:

Rather, as this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. Id., at 78; Katzenbach v. McClung, 379 U.S. 294, 301—302 (1964); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942); Shreveport Rate Cases, 234 U.S. 342, 353 (1914); United States v. E. C. Knight Co., 156 U.S. 1, 39—40 (1895) (Harlan, J., dissenting).1 And the category of “activities that substantially affect interstate commerce,” Lopez, supra, at 559, is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

Note the distinction between inTRAstate commerce and inTERstate commerce.

cjw79 on March 26, 2012 at 2:03 PM

Ginsburg and Breyer want this to be constitutional under the Commerce Clause; they don’t want it to be constitutional under the tax and spend power because that power has already reached its outer limit. By holding it constitutional under the commerence clause, that provision will now be stretched to its outer limit. And, as a result, the Federal Constitution’s structure of limited government is done

RedSoxNation on March 26, 2012 at 2:06 PM

For example, while the Social Security TAX is Constitutional, spending the money as a retirement plan is NOT Constitutional.

dominigan on March 26, 2012 at 1:57 PM

How about “promoting the general welfare”?

Personally, I don’t believe the preamble has any legal authority, so using “promote the general welfare” as Constitutional authority is wrong.

BobMbx on March 26, 2012 at 2:07 PM

I am still astonished that Obama was determined to have the Supremes rule on this by summer, when all they had to do was to get the 11th Circuit to review the decision en banc, which would have put the Supreme Court review off until 2013.

matthew8787 on March 26, 2012 at 1:57 PM

Obama is notorious for making terrible political choices. I am sure the thinking inside the WH is that if these cases are settled before the election it becomes less of an election issue, but this thinking seems wrong to me. Even if they lose on the mandate there is a strong possibility the rest of law stays. It doesn’t go away as a political issue.

NotCoach on March 26, 2012 at 2:07 PM

Ginsburg and Breyer want this to be constitutional under the Commerce Clause; they don’t want it to be constitutional under the tax and spend power because that power has already reached its outer limit. By holding it constitutional under the commerence clause, that provision will now be stretched to its outer limit. And, as a result, the Federal Constitution’s structure of limited government is done

RedSoxNation on March 26, 2012 at 2:06 PM

What do you mean by your last sentence? That you expect the limits of congress’s power will be defined by the ACA ruling? I agree with your other points. (Btw I guess Lester’s pitching a beaut right now).

cjw79 on March 26, 2012 at 2:08 PM

(CNSNews.com) – When CNSNews.com asked House Speaker Nancy Pelosi (D-Calif.) on Thursday where the Constitution authorized Congress to order Americans to buy health insurance–a mandate included in both the House and Senate versions of the health care bill–Pelosi dismissed the question by saying: Are you serious? Are you serious?

Yes, Nancy, I’m very serious.

The ACA is unconstitutional on all levels. I’d also argue it imposes contractual obligations on unwilling participants under duress due to the threat of penalty or tax. Any contract which is not willingly entered into by both parties is void.

I am confident the SCOTUS will do the right thing.

Opinionator on March 26, 2012 at 2:09 PM

That you expect the limits of congress’s power will be defined by the ACA ruling? I agree with your other points. (Btw I guess Lester’s pitching a beaut right now).

cjw79 on March 26, 2012 at 2:08 PM

I think the point is that if ACA is found constitutional pursuant to the commerce clause -the commerce clause will be virtually unlimited in its scope and will subsume all other constitutional clauses relating to federal power except perhaps the bill of rights. I.e., anything and everything will become legitimately subject to federal regulation under the constitution.

Monkeytoe on March 26, 2012 at 2:13 PM

That’s not correct. The Court could find that Congress had the power to implement the mandate pursuant to its power to regulate those things that have a substantial affect on interstate commerce (pursuant to the necessary and proper clause).

Wrong! One cannot purchase health insurance across state lines. Therefore, health care in not an interstate commodity and Congress cannot regulate it. This falls under the power of the states.

timberline on March 26, 2012 at 2:13 PM

anybody monitoring any left wing blogs for their reaction to today’s tax discussion and its implications for tomorrow?

matthew8787 on March 26, 2012 at 2:14 PM

So far, so good.

GarandFan on March 26, 2012 at 2:15 PM

Wrong! One cannot purchase health insurance across state lines. Therefore, health care in not an interstate commodity and Congress cannot regulate it. This falls under the power of the states.

timberline on March 26, 2012 at 2:13 PM

Wrong! I quoted Justice Scalia earlier. The Court has long recognized that “[w]here necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.” So if the Court finds that mandating the purchase of health insurance is necessary to make the regulation of the health system effective, then it is constitutional.

cjw79 on March 26, 2012 at 2:18 PM

Obama is notorious for making terrible political choices. I am sure the thinking inside the WH is that if these cases are settled before the election it becomes less of an election issue, but this thinking seems wrong to me. Even if they lose on the mandate there is a strong possibility the rest of law stays. It doesn’t go away as a political issue.

NotCoach on March 26, 2012 at 2:07 PM

Without the mandate, this law is dead. They can leave it on the books, but it will be unenforceable. It’s like forming a club and writing a charter and by-laws, but without members, the club isn’t worth a hill of beans.

timberline on March 26, 2012 at 2:18 PM

Greta will be must-see tonight!!

SouthernGent on March 26, 2012 at 2:19 PM

Wrong! I quoted Justice Scalia earlier. The Court has long recognized that “[w]here necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.” So if the Court finds that mandating the purchase of health insurance is necessary to make the regulation of the health system effective, then it is constitutional.

cjw79 on March 26, 2012 at 2:18 PM

How does that affect intrastate non-activity, i.e., not buying health insurance? Answer: it doesn’t – or the premise of a limited government ceases to have meaning.

JDF123 on March 26, 2012 at 2:23 PM

Can somebody with a better memory than I have help me out here?

At what point did Obama come out in favor of an individual mandate? Was it after he became the nominee, after he won the election, or after the House and Senate had the broad outlines of their plans sketched out?

Also, wasn’t it the case that he took a lot of criticism for essentially delegating the whole health reform effort to Congress? My memory is vague, but I thought that he didn’t really get involved until final House-Senate negotiations and final scramble for votes.

Does anyone else remember this? Or am I completely off-base here?

Just Sayin on March 26, 2012 at 2:23 PM

How does that affect intrastate non-activity, i.e., not buying health insurance? Answer: it doesn’t – or the premise of a limited government ceases to have meaning.

JDF123 on March 26, 2012 at 2:23 PM

Well that’s the exact question presented in this case-of-the-century, of course. It’s very easy to argue that the activity is making an affirmative choice to refrain from purchasing health insurance. There’s no point in debating this on a website though. There are hundreds of pages of briefs in front of the justices addressing this precise question.

cjw79 on March 26, 2012 at 2:26 PM

Wrong! I quoted Justice Scalia earlier. The Court has long recognized that “[w]here necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.” So if the Court finds that mandating the purchase of health insurance is necessary to make the regulation of the health system effective, then it is constitutional.

cjw79 on March 26, 2012 at 2:18 PM

Wrong again! What you are quoting are references to an individual or company actively participating in a commercial item or service even if it is local rather than national. What this lawsuit is all about is forcing an individual to participate in a commercial item or service against his will. There’s a big distinction between the two. You need to slow down and read only as fast as you can understand what you’re reading.

timberline on March 26, 2012 at 2:28 PM

Can somebody with a better memory than I have help me out here?

At what point did Obama come out in favor of an individual mandate? Was it after he became the nominee, after he won the election, or after the House and Senate had the broad outlines of their plans sketched out?

Also, wasn’t it the case that he took a lot of criticism for essentially delegating the whole health reform effort to Congress? My memory is vague, but I thought that he didn’t really get involved until final House-Senate negotiations and final scramble for votes.

Does anyone else remember this? Or am I completely off-base here?

Just Sayin on March 26, 2012 at 2:23 PM

My recollection is that he flipped on the mandate after he was elected, but before the debate in congress began in earnest. His lack of support for a mandate was the principle difference between his and Clinton’s health care plans in the primaries. And you’re right that he took a lot of deserved criticism for being so hands-off during the summer of 2009. He delegated the entire negotiation process to Max Baucus and Chuck Grassley for god’s sake and only jumped in when things became imperiled (about 45 times before the bill passed). A very poor example of presidential leadership.

cjw79 on March 26, 2012 at 2:29 PM

Wrong again! What you are quoting are references to an individual or company actively participating in a commercial item or service even if it is local rather than national. What this lawsuit is all about is forcing an individual to participate in a commercial item or service against his will. There’s a big distinction between the two. You need to slow down and read only as fast as you can understand what you’re reading.

timberline on March 26, 2012 at 2:28 PM

Of course I understand the difference. As I mentioned earlier, a lot will be based on the meaning of “activity.” It’s not an easy question either, or else the Court wouldn’t have devoted six freaking hours to hear the case.

cjw79 on March 26, 2012 at 2:31 PM

This is just misdirection.

“Liberals” don’t want this to be a “tax”. This doesn’t mean what you might think. This is laying the foundation so that when they rule the mandate constitutional, there will not be recourse to fight this as an unjust tax.

Remember, the IRS is going to be the enforcement arm of this legislation, if it passes. They will have access to every bank account, every pay check, every social security, pension, investment or other income stream possible. And, they will be the sole determiner of whether or not you’re meeting the criteria of the mandate, and will have the ability to fine or even imprison you if you refuse to enter into the mandate or otherwise do not pay what they deem “necessary”.

That’s taxation without representation – IF it were considered a tax.

KMC1 on March 26, 2012 at 2:32 PM

There are hundreds of pages of briefs in front of the justices addressing this precise question.

cjw79 on March 26, 2012 at 2:26 PM

None of these briefs cover or are even remotely related to having an individual enter into a contract against his wishes and be penalized for not doing so. This is where Congress overstepped it’s authority.

timberline on March 26, 2012 at 2:34 PM

If 0-Care is overturned but 0bama re-elected, watch for him to expand the Court to 11 justices. Roosevelt tried it, and 0bama is even more arrogant than FDR.

cane_loader on March 26, 2012 at 12:54 PM

He may try it, but no way will the GOP in Congress let him have that. They roll over for plenty, but even they have their lines in the sand.

Bitter Clinger on March 26, 2012 at 2:35 PM

My recollection is that he flipped on the mandate after he was elected, but before the debate in congress began in earnest. His lack of support for a mandate was the principle difference between his and Clinton’s health care plans in the primaries. And you’re right that he took a lot of deserved criticism for being so hands-off during the summer of 2009. He delegated the entire negotiation process to Max Baucus and Chuck Grassley for god’s sake and only jumped in when things became imperiled (about 45 times before the bill passed). A very poor example of presidential leadership.

cjw79 on March 26, 2012 at 2:29 PM

Thanks very much. cjw79!

This is worrisome b/c if the mandate is struck down, he might be able argue both that he wasn’t really a strong supporter of it (pointing to his primary campaign), and didn’t actually fight for it, but that he supported it because “something had to be done,” and that was the option that Congress gave him. He could further argue that he and Democrats support the other (popular) provisions in the legislation and would fight to pass them as standalone provisions, while Republicans just want to throw the whole thing out.

It could be a very powerful and persuasive argument, esp. since the media will be carrying his water for him.

Just Sayin on March 26, 2012 at 2:36 PM

Headline:

“SCOTUS STRIKES DOWN OBAMACARE AS UNCONSTITUTIONAL”

Response from the Obama/Pelosi/Reid cabal:

“So what” “Well, you have to understand that Obamacare wasn’t our bill, per se”.

BobMbx on March 26, 2012 at 1:14 PM

Trafalgar on March 26, 2012 at 2:37 PM

angryed on March 26, 2012 at 1:42 PM

Just as likely that there are a number of Republican senators who would go along with the president’s choice.

Cindy Munford on March 26, 2012 at 2:37 PM

Obama Lawyer Laughed at In Supreme Court

I wont be laughing until this disaster is ruled unconstitutional or repealed.

Yakko77 on March 26, 2012 at 2:38 PM

So if the Court finds that mandating the purchase of health insurance is necessary to make the regulation of the health system effective, then it is constitutional.

cjw79 on March 26, 2012 at 2:18 PM

In essence, what you are saying is that Congress can write any law stating that in order to make the Volt a successful venture, people will be mandated to purchase a Volt. Otherwise, he will be charged a penalty and could be imprisoned. Oh, and the IRS will collect the penalties. But don’t confuse the penalties with taxes, because they’re different animals. Getting confused?

timberline on March 26, 2012 at 2:46 PM

If the court decides anything but the complete annulment of Obamneycare the upcoming Hussein landslide victory will make the path to Canadian style single payer irreversible.

Annar on March 26, 2012 at 2:52 PM

Headline:

“SCOTUS STRIKES DOWN OBAMACARE AS UNCONSTITUTIONAL”

Response from the Obama/Pelosi/Reid cabal:

“So what” “Well, you have to understand that Obamacare wasn’t our bill, per se”. WE ACTUALLY COPIED IT FROM ROMNEYCARE.

BobMbx on March 26, 2012 at 1:14 PM

Trafalgar on March 26, 2012 at 2:37 PM

There….all fixed and shiny.

timberline on March 26, 2012 at 2:53 PM

In essence, what you are saying is that Congress can write any law stating that in order to make the Volt a successful venture, people will be mandated to purchase a Volt. Otherwise, he will be charged a penalty and could be imprisoned. Oh, and the IRS will collect the penalties. But don’t confuse the penalties with taxes, because they’re different animals. Getting confused?

timberline on March 26, 2012 at 2:46 PM

Yes, I know that’s the kind of thing people who oppose the mandate argue. That’s not the end all and be all though. Not every alleged slippery slope is taken to its most hyperbolic conclusion though. There is a very solid argument that health care is a unique field, that congressional authority over the entire field is appropriate, and that exercising that authority does not necessarily imply that Congress can compel participation in other areas of commerce. It’s an argument that I happen to agree with and one that you obviously don’t. But the Supreme Court will make the call in June, and then we’ll fight about who should be impeached and why. I’m looking forward to it already!

cjw79 on March 26, 2012 at 3:02 PM

There is a very solid argument that health care is a unique field

Are you saying something unique does not have to be in concert with law?

How is it unique? (differentiate it from other fields, if you please)

BobMbx on March 26, 2012 at 3:07 PM

There is a very solid argument that health care is a unique field, that congressional authority over the entire field is appropriate, and that exercising that authority does not necessarily imply that Congress can compel participation in other areas of commerce.

cjw79 on March 26, 2012 at 3:02 PM

cjw79, could one make the argument, though, that if health insurance is a unique field, that uniqueness is the result of massive government intervention in the first place? (Gov’t is both a regulator of the market as well as the single largest participant in the market.) I haven’t thought this through, but if that’s the case, does that change your calculation at all?

Just Sayin on March 26, 2012 at 3:10 PM

There is a very solid argument that health care is a unique field, that congressional authority over the entire field is appropriate

Whose argument? Let’s have the particulars and why hasn’t this ever been used before or even mention?

stukinIL4now on March 26, 2012 at 3:11 PM

Are you saying something unique does not have to be in concert with law?

How is it unique? (differentiate it from other fields, if you please)

BobMbx on March 26, 2012 at 3:07 PM

Sigh. As I said repeatedly, there’s no point in me arguing the case to you guys who will not under any circumstances accept the validity of the individual mandate. I’ll just say this: Congress confronted a crippling health care crisis, where more than 17% of our GDP went to health care costs and more than 50 million Americans did not have insurance. Congress addressed that crisis by requiring all individuals to purchase health insurance, which in theory (that part hasn’t gone into effect yet, so we don’t know what will happen) will lower health care premiums while at the same time ensuring coverage for all despite the existence of pre-existing conditions. In order to make all of that work, everyone needs to participate in the insurance market.

This law affects every person in the country, because every person in the country at some point in time will necessarily be affected by the presence or absence of their health care coverage. It will directly affect every American. That’s how health care is unique, in my opinion. I can see counterarguments to that point, but allowing Congress to take control over this segment of the economy is in my view a perfectly appropriate exercise of power.

I’ll be very interested in seeing how the administration’s lawyers define tomorrow what the outer limits of congressional power are. It will go a long way toward predicting the outcome of this case. I don’t know if they’ll make the “sui generis” argument or not, but it is logical in my mind and a sound basis in affirming the law as consistent with Congress’s commerce clause power.

cjw79 on March 26, 2012 at 3:18 PM

If it goes down with only those two upholding it, there should be some kind of investigation for collusion. I’m sorry, but aren’t sitting US Supreme Court justices supposed to be impartial!? If only those two uphold this thing it would stink to high heaven.

Meople on March 26, 2012 at 1:26 PM

Justices can literally do whatever they want, and unless they meet the impeachement standard, there is nothing that can be done.

Justices are supposed to be impartial, but they are not. And I fully expect the 2 Obama appointments to vote to uphold the law, and write a scathing dissent if it gets over-turned.

Again, this is yet another reason why Romney has to be President in 9 months. You cannot allow Obama to appoint any more justices. He will appoint nothing but 40-50 year old hardcore liberals who will be on the Court for years, and will make law, instead of upholding it. And I dont care what you think of Romney, there is no way the Judges he appoints will be worse than Kennedy, while the judges Obama appoints will probably be more extreme than Kagan (say hello to judges who have beliefs similar to Cass Sunstein).

milcus on March 26, 2012 at 3:20 PM

cjw79, could one make the argument, though, that if health insurance is a unique field, that uniqueness is the result of massive government intervention in the first place? (Gov’t is both a regulator of the market as well as the single largest participant in the market.) I haven’t thought this through, but if that’s the case, does that change your calculation at all?

Just Sayin on March 26, 2012 at 3:10 PM

I don’t think that argument would change the calculation, because people will take part, or not take part (raising premiums) in the market regardless. It doesn’t have anything to do with government. Everyone will need health care at some point in their lives.

cjw79 on March 26, 2012 at 3:25 PM

I’ll just say this: Congress confronted a crippling health care crisis, where more than 17% of our GDP went to health care costs and more than 50 million Americans did not have insurance. Congress addressed that crisis by requiring all individuals to purchase health insurance, which in theory (that part hasn’t gone into effect yet, so we don’t know what will happen) will lower health care premiums while at the same time ensuring coverage for all despite the existence of pre-existing conditions. In order to make all of that work, everyone needs to participate in the insurance market.

cjw79 on March 26, 2012 at 3:18 PM

It amazes me what seemingly intelligent people like yourself believe.

ObamaCare is only projected to add a net 32 million people to health insurance- half of which are simply dumped into Medicaid.

So you’re talking 16 million new insurance customers. 260 million Americans have insurance, give or take 10 million.

What will adding 16 million to insurance do to prices for the other 260 million? Absolutely nothing, especially given how much ObamaCare does to jack up premiums through lifetime caps on payouts, guaranteed issue and forcing covering pre-existing conditions.

It’s insane to believe ObamaCare will lower prices overall when it specifically jacks up the cost to issue insurance.

Chuck Schick on March 26, 2012 at 3:26 PM

This law affects every person in the country, because every person in the country at some point in time will necessarily be affected by the presence or absence of their health care coverage. It will directly affect every American. That’s how health care is unique, in my opinion. I can see counterarguments to that point, but allowing Congress to take control over this segment of the economy is in my view a perfectly appropriate exercise of power.

Yes, but in the same vein, almost everything effects one’s health, thus effecting health care. What you eat. What you don’t eat. Whether you exercise. How you exercise. Whether you drink alcohol. Smoke. Tan excessively. Whether you do home repair. If you ski. If you sky-dive. Every single thing a person does or does not do can be said to effect their health to some extent and thus the cost of health care. Absolutely everything can effect health care and thus can fit into your fairly ridiculous criteria for federal gov’t authority to exercise power.

Moreover, the following can be also regulated by congress “because very person in the country at some point in time will necessarily be affected by the presence or absence” of it: Food, shelter, clothing, water, transportation. Again, this list can go on and on. Now, to some extent congress already (mostly improperly) regulates these areas.

But the idea of a limited power federal gov’t does not fit whatsoever into your definition of “very person in the country at some point in time will necessarily be affected by the presence or absence” of the thing.

The question isn’t should congress do it – which is really the argument you are making – but does the constitution give congress the authority to do it, which your argument does not really address whatsoever.

Monkeytoe on March 26, 2012 at 3:28 PM

timberline, that is a ridiculous argument.

If the Supremes throw out Obamacare, Romney’s 10th amendment argument is still standing and voters in 49 other states won’t care.

Moreover, Romney will make 2 points hugely salient with independents:

1. Obama wasted 2 years and nearly all of his political capital on a bill that the American people despised and that the Supreme Court ruled unconstitutional; and

2. Romney can innoculate himself from any allegation that he, like prior GOP nominees, “doesn’t care about health care for the uninsured.”

Moreoever, whether this is upheld or rejected, every Dem senator seeking re-election will be crippled as the 60th decisive vote for this monstrosity. Bye-bye Tester, McCaskill, Nelson of FL.

matthew8787 on March 26, 2012 at 3:29 PM

I’ll just say this: Congress confronted a crippling health care crisis, where more than 17% of our GDP went to health care costs and more than 50 million Americans did not have insurance.

By the way “crippling” is untrue and 50 million may or may not be true, depending on who you are counting and whether you are counting those voluntarily without insurance as “did not have insurance” (which seems to imply some kind of reason beyond their control).

And, increasing the 3rd party payer problem is not going to reduce health care costs to less than 17%. It may redistribute who pays what a little (i.e., burdening the young and health with purchasing insurance to reduce the cost on the older), but it does absolutely nothing about “health care costs”. The only way Obamacare touches upon health care costs is if the death panel type solutions (i.e. rationed care) and price controls (again, will cause a reduction in supply leading to more rationed care) are instituted. the idea that increasing the number of people insured will reduce the actual costs of health care is beyond ignorant. Obamacare and the mandate are about health insurance, not health care costs.

Monkeytoe on March 26, 2012 at 3:33 PM

cjw79 are you crr6?

txmomof6 on March 26, 2012 at 3:34 PM

health care is not unique any more than other societal ills; certainly not sufficiently unique to trample the constitution.

I hope Virrelli is stupid enough to make this argument, because I don’t think Justice Kennedy will buy it.

I hope the plaintiffs are ready for some legal stunt tomorrow, because the Administration is going for broke. Justice Ginsburg was telegraphing Verrilli not to rely on the tax argument, because they don’t have the votes.

matthew8787 on March 26, 2012 at 3:34 PM

I don’t think that argument would change the calculation, because people will take part, or not take part (raising premiums) in the market regardless. It doesn’t have anything to do with government. Everyone will need health care at some point in their lives.

cjw79 on March 26, 2012 at 3:25 PM

Food. Water. Shelter. Clothing. can congress force us to purchase those goods or force us to purchase specific ones? Everyone needs those things more than they need healthcare. without food and water, you can’t live so healthcare is irrelevant. Depending on where you live, same goes for clothing and shelter (at least in winter).

So, why then can’t congress pass laws directing us to purchase certain foods, drink certain amounts of water, live in specific locations (i.e., put up huge buildings and force us all to live in barracks like rooms)?

Why not? they are all unique to sustaining life? Much more so than health-care. Most people can actually live a full life without ever seeing a doctor. Sure, you’d have some relative discomfort, but people survived full lives well before modern medicine.

Monkeytoe on March 26, 2012 at 3:37 PM

Just because the American public thinks something should be viewable, that doesn’t mean it should be.

The weak calls that eventually turned the OJ Simpson trial into a circus were hailed as fair, flexible, judicious and safe – at first.

David Blue on March 26, 2012 at 3:38 PM

At some point in my life everyone likely needs a job to be able to survive. In fact, this is more likely than needing health-care to live a full life.

So, can congress regulate where I work, how much I get paid (i.e., specifically, not just minimum wage requirements), etc? Is that constitutional?

Monkeytoe on March 26, 2012 at 3:40 PM

cjw79 are you crr6?

txmomof6 on March 26, 2012 at 3:34 PM

haha no, just looking for a good faith discussion! Like I said, I can see the other side to my position, and I freely acknowledge that this case pushes the bounds of the commerce clause in a way the court has never confronted before. I don’t know what the court will do, but I do believe they would be acting perfectly in accordance with the text of the constitution and constitutional case law to let the mandate (and the entire law) to stand. I’m definitely interested in seeing what happens.

cjw79 on March 26, 2012 at 3:40 PM

Can somebody with a better memory than I have help me out here?

At what point did Obama come out in favor of an individual mandate? Was it after he became the nominee, after he won the election, or after the House and Senate had the broad outlines of their plans sketched out?

Also, wasn’t it the case that he took a lot of criticism for essentially delegating the whole health reform effort to Congress? My memory is vague, but I thought that he didn’t really get involved until final House-Senate negotiations and final scramble for votes.

Does anyone else remember this? Or am I completely off-base here?

Just Sayin on March 26, 2012 at 2:23 PM

My recollection is that he flipped on the mandate after he was elected, but before the debate in congress began in earnest. His lack of support for a mandate was the principle difference between his and Clinton’s health care plans in the primaries. And you’re right that he took a lot of deserved criticism for being so hands-off during the summer of 2009. He delegated the entire negotiation process to Max Baucus and Chuck Grassley for god’s sake and only jumped in when things became imperiled (about 45 times before the bill passed). A very poor example of presidential leadership.

cjw79 on March 26, 2012 at 2:29 PM

In August of 2009 when the townhall meetings of concerned citizens started weighing in on ObamaCare and after Obama had the “cops acted stupidly” press conference. Nancy had already forced her blue dog Dems to take a politically foolish vote in favor of Cap and Trade and Congress began taking the heat from Constituents. The tide began to turn against ObamaCare and the CBO director came out and said it would cost over a trillion dollars, so they went back to square one and went downhill from there.

txmomof6 on March 26, 2012 at 3:41 PM

but I do believe they would be acting perfectly in accordance with the text of the constitution and constitutional case law to let the mandate (and the entire law) to stand. I’m definitely interested in seeing what happens.

cjw79 on March 26, 2012 at 3:40 PM

I agree with the precedence part, as there is a lot of very bad precedence making a mockery of the text of the constitution on the commerce clause (as well as on other parts). I disagree with the being in accordance with the test of the constitution part though. If the commerce clause is so large to allow this, then the remainder of the constitution as to power of congress are pretty meaningless. It will be the exception swallowing the rule. either the constitution was meant to establish a federal gov’t of limited power or we have a federal gov’t of unlimited power despite the constitution. but we cannot have both.

That said, I will not be surprised if SCOTUS upholds the law.

Monkeytoe on March 26, 2012 at 3:47 PM

I don’t think that argument would change the calculation, because people will take part, or not take part (raising premiums) in the market regardless. It doesn’t have anything to do with government. Everyone will need health care at some point in their lives.

cjw79 on March 26, 2012 at 3:25 PM

Thanks for your response.

Everyone may need health care at some point in their lives, but not everyone will need health insurance.

I wasn’t sure what you meant by “…or not take part (raising premiums)…” Is your argument a classic “free rider” argument or is it a risk-pooling argument?

Thanks for the dialogue. :-)

Just Sayin on March 26, 2012 at 3:48 PM

In August of 2009 when the townhall meetings of concerned citizens started weighing in on ObamaCare and after Obama had the “cops acted stupidly” press conference. Nancy had already forced her blue dog Dems to take a politically foolish vote in favor of Cap and Trade and Congress began taking the heat from Constituents. The tide began to turn against ObamaCare and the CBO director came out and said it would cost over a trillion dollars, so they went back to square one and went downhill from there.

txmomof6 on March 26, 2012 at 3:41 PM

Thanks!! It’s starting to come back to me now…. :-)

Just Sayin on March 26, 2012 at 3:50 PM

Some solid argument that health care is unique and that everyone will eventually need it in their lifetime. Are we talking about actual health “care” or are we talking about health “insurance” for that care? Not everyone will necessarily need care or seek it. Many who seek it may opt to pay for it themselves. Were it not for the insurance and all the legal pitfalls and malpractice threats, health care costs could be a lot lower and maybe more affordable. And geez, I guess another argument not to overlook is–duh, what did people do 100 years ago? 200 years ago? when there was no health insurance or formal health care in the country.

Some of us have done without health insurance for years now and we’re still walking around. And with a boondoggle that’s going to put our entire country finally, absolutely and unequivocally broke, what in the world would be the point of having catastrophic health insurance coverage since no one is gonna want to even live in a post-Obamacare America–as if that might even be a possibility.

stukinIL4now on March 26, 2012 at 3:56 PM

cjw79 on March 26, 2012 at 3:18 PM

Thats a lot words and emotion, but I’m looking for legal ground for ignoring the law because something is unique.

I’m not arguing that it isn’t unique, rather, I’m waiting for you to tell me why the law should carve out exceptions due to uniqueness.

If you want a unique crisis, lets talk about Social Security. Its a ponzi scheme, legal though, and in the moderate future, is forecasted to consume more than the entire forecasted federal revenues.

Unique? Crisis? Crickets?

BobMbx on March 26, 2012 at 4:00 PM

cjw79,

I will say this…at some point the Commerce Clause will be used to cut programs and spending due to their negative impact on interstate commerce, simply because the level of taxation to fund them will (and is right now) impact commerce.

Karma. Or chickens comin’ home to roost.

BobMbx on March 26, 2012 at 4:09 PM

Survey of legal “insiders”: The Supreme Court will uphold ObamaCare…Inside the beltway no doubt.

chickasaw42 on March 26, 2012 at 4:26 PM

timberline, that is a ridiculous argument.

If the Supremes throw out Obamacare, Romney’s 10th amendment argument is still standing and voters in 49 other states won’t care.

Moreover, Romney will make 2 points hugely salient with independents:

1. Obama wasted 2 years and nearly all of his political capital on a bill that the American people despised and that the Supreme Court ruled unconstitutional; and

2. Romney can innoculate himself from any allegation that he, like prior GOP nominees, “doesn’t care about health care for the uninsured.”

Moreoever, whether this is upheld or rejected, every Dem senator seeking re-election will be crippled as the 60th decisive vote for this monstrosity. Bye-bye Tester, McCaskill, Nelson of FL.

matthew8787 on March 26, 2012 at 3:29 PM

There is no argument on my part regarding how you feel about Romney. But here’s my view on Romney. I do not hate Mitt Romney I simply think he is an empty or plastic suit that can morph into ANY position and I do mean ANY position IF he thinks it will get him first a governor of a state and now the president of ALL the states.

He is passionless, transparently a morphing salamander who can twist and turn into ANY position IF he thinks it will get him votes. The obvious is his obvious progressive or moderate run for governor (one term) in Mass and now for president. First for a mandate, then against it, first for gay rights then adamantly against it. He does not care about the poor and then when the dust flew oh yes, he simply misspoke. I do not think he misspoke I simply think he does not know to whom he should appeal. He is caught like an animal in a trap. If he waxes to the right the base feels happier but suspicious; if he waxes to the left his base HATES him and the general elective won’t buy his snake oil.
Unfortunately, this is the best the GOP can offer up. They didn’t learn anything last time around when they served up McCain. Now the GOP is serving up the man who lost to the man who lost to Obama.

timberline on March 26, 2012 at 4:27 PM

That wouldn’t work either. I don’t have any problem with releasing audio after the fact, though.

Unfortunately (or not) we live in a visual world where pretty and healthy-looking people have a distinct advantage in just about everything, including perceived credibility.

The earliest example I can think of was the TV debates with Kennedy and Nixon. If you listened to just the audio, Nixon won on every question, hands down. If you watch the film, Kennedy wins. (and once you watch the film, just once, you will give the win to Kennedy forever).

Its hard-coded into our species to avoid odd looking things, especially food. If it looks bad, it probably is. Ergo, Nixon lost the minute the camera turned on. No makeup, and with his 5 o’clock shadow on a black and white tv:

“OMG, its Fred Flintstone….can’t vote for him”.

BobMbx on March 26, 2012 at 1:58 PM

I would say only idiots react that way. I can watch that debate over and over and Nixon wins every time, no matter how gorgeous people think JFK was. I wasn’t alive then so my most recent foray would be the 2008 Presidential election. In the Dem primary I actually found myself rooting for Hillary because I knew the other idiots were absolutely wrong while she was just mostly wrong. No matter how ‘well spoken’ Obama was and no matter how eloquent Edwards was I judged them by the content of their words and not the image they were trying to project.

I know a lot of people get blinded by the celebrity of a candidate but that’s why we conservatives have reason, logic, facts, and reality. To do battle with dimwits(read MTVgeneration) you gotta bring the entire quiver of arrows.

StompUDead on March 26, 2012 at 4:35 PM

Although the U.S. Constitution places some limits on state power, the states enjoy guaranteed rights by virtue of their reserved powers pursuant to the Tenth Amendment. A state has the inherent and reserved right to regulate its domestic commerce. However, that right must be exercised in a manner that does not interfere with, or place a burden on, interstate commerce, or else Congress may regulate that area of domestic commerce in order to protect interstate commerce from the unreasonable burden. Although a state may not directly regulate, prohibit, or burden interstate or foreign commerce, it may incidentally and indirectly affect it by a bona fide, legitimate, and reasonable exercise of its police powers. States are powerless to regulate commerce with Indian tribes.

The ACA aka Obamascare does just that. Places limits in what and how much the states control and will be considered an interference to intrastate ccommerce that will preclude the benefits of interstate commerce.

ACA overturned on unconstutionality of the individuasl mandate 6-3.

to wit : Whether any transaction constitutes interstate or intrastate commerce depends on the essential character of what is done and the surrounding circumstances. The courts take a commonsense approach in examining the established course of business in order to distinguish where interstate commerce ends and local commerce begins. If activities that are intrastate in character have such a substantial effect on interstate commerce that their control is essential to protect commerce from being burdened, Congress may not be denied the power to exercise that control.

In 1995, for the first time in nearly 60 years, the U.S. Supreme Court held that Congress had exceeded its power to regulate interstate commerce. In United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), the Court ruled 5–4 that Congress had exceeded its Commerce Clause power in enacting the Gun-Free School Zones Act of 1990 (18 U.S.C.A. § 921), which prohibited the possession of firearms within 1,000 feet of a school.

In reaching its decision, the Court took the various tests used throughout the history of the Commerce Clause to determine whether a federal statute is constitutional, and incorporated them into a new standard that specifies three categories of activity that Congress may regulate under the clause: (1) the channels of interstate commerce, (2) persons or things in interstate commerce or instrumentalities of interstate commerce, and (3) activities that have “a substantial relation to interstate commerce … i.e., those activities that substantially affect interstate commerce.” The Court then applied this new standard to the 1990 Gun-Free School Zones Act and found that the statute could be evaluated under the third category of legislation allowed by the Commerce Clause. But the Court noted that the act was a criminal statute that had nothing to do with commerce and that it did not establish any jurisdictional authority to distinguish it from similar state regulations. Because the statute did not “substantially affect interstate commerce,” according to the Court, it went beyond the scope of the Commerce Clause and was an unconstitutional exercise of Congress’s legislative power.

These will be the guidelines for ACA arguments after standing is established, particularly under Roberts.

DevilsPrinciple on March 26, 2012 at 3:56 PM

DevilsPrinciple on March 26, 2012 at 4:55 PM

I’m wondering how the Supreme Court’s apparent rejection of the tax argument is related to this article about a shift in defence by Team Obama:

http://thehill.com/blogs/healthwatch/health-reform-implementation/216361-obama-shifts-healthcare-defense

Basically, they appear to be moving away from Commerce Clause and towards the Necessary and Proper Clause.

How is the tax issue affected by this?

Dennis_Second_Thots on March 26, 2012 at 4:58 PM

…every person in the country at some point in time will necessarily be affected by the presence or absence of their health care coverage. It will directly affect every American. That’s how health care is unique, in my opinion…

cjw79 on March 26, 2012 at 3:18 PM

There is a lot, and I mean A LOT, of conflation of health CARE and health INSURANCE in this argument. Health CARE may be unique but it doesn’t necessarily follow from that that every person can and/or must engage in health INSURANCE.

Congress addressed that crisis by requiring all individuals to purchase health insurance, which in theory (that part hasn’t gone into effect yet, so we don’t know what will happen) will lower health care premiums while at the same time ensuring coverage for all despite the existence of pre-existing conditions. In order to make all of that work, everyone needs to participate in the insurance market.

Is a person able to get health care services without first obtaining insurance? Yes! So is insurance an ironclad requirement for health care to exist? No!

Having eliminated insurance as a requisite, I personally consider the matter closed, but let’s stipulate the idea of insurance as broader cost control. First, to say so undermines the long Democrat meme that insurance is part of the cause of high cost of health care. If insurance drives up prices, then more insurance logically cannot drive prices down.

But let’s allow even that and go to Obama’s big speeches about “risk pools”, sounding like he knows what he’s talking about. What people, primarily, are targeted for this mandate? People who don’t already have insurance. But let’s leave aside for now the notion that the White House seeks to criminalize the very people it intends to help with the law. The idea of a risk pool is that if you have more people paying in, then the costs are more widely distributed and thus, less per person. But who is being added to the insurance rolls? Children with pre-existing conditions, college graduates under 26, and a broad expansion of Medicaid recipients. What do all of these groups have in common? None of them are primary enrollees with premiums. They are either dependents of existing enrollees or people in the welfare system. This is not an expansion of the risk pool, it is an expansion of the DEPENDENT pool, so what you get is the same number of people paying in and more people getting paid out. There’s no logical way that results in a lower cost per person. Even when you add the exchanges, that is a group that could not afford insurance before, so assuming they cannot just magically afford insurance now, that means subsidies, paid either by the enrollee (higher premiums) or the taxpayer (higher taxes). There’s just no way around this, and the ballooning cost of the law is bearing that out.

In short, the idea that insurance is required is nonsensical, the idea that insurance is the solution to high cost belies the Democrat party line on greedy insurers, and the idea that insurance will benefit from adding these specific people is mathematically absurd. The reason people here will not consider the notion of the individual mandate, is there is no compelling reason to require it and no logical reason it will work as advertised.

The Schaef on March 26, 2012 at 5:04 PM

Weather this nation continues to struggle along, 2/3 dead, or utterly collapses into ruinous strife will be determined by the court. You had better believe I am watching this with great interest.

SilverDeth on March 26, 2012 at 5:45 PM

ObamaCare was designed to FAIL. That way the Democrats could say “we tried”…..and then move right into a single payer system. Which is what they wanted in the first place.

Don’t forget, this was the hey-day of “we’re gonna rule for a generation!”

GarandFan on March 26, 2012 at 6:29 PM

Its ridiculous to say this is interstate commerce. I can only buy insurance in my own state…thats the law in the entire country. I go to my doctor in my home town, not another state. The insurance company…in my state, pays the bill…IF I don’t pay out of my own pocket.

Does everyone in the country cross state lines to see a doctor?

RichardG on March 26, 2012 at 7:23 PM

Oh, and can we just repeal and void the commerce clause already?

RichardG on March 26, 2012 at 7:25 PM

I’d choose upholding the constitution over winning the next election, personally. Keeping the house and [if possible] winning the senate is tantamount.

Violina23 on March 26, 2012 at 12:54 PM

If we don’t win the Presidential election, this Country is in big trouble. Who nominates judges for the Supreme Court? Not the Congress! The POTUS! And you should know by now that the Republicans in Congress don’t have the guts to turn down Democrat nominees to the Supreme Court. If Obama is re-elected, it is possible that he will have 2-3 opportunities to make nominations, & those judges will tilt the Court to the left for many years to come.

Susanboo on March 26, 2012 at 8:41 PM

I’m a little rusty on my Commerce Clause cases, but I read of a Supreme Court decision upholding federal (wartime price) regulations applied to (by means of a monetary fine) a grain farmer growing grain on his own land to be consumed by his own animals on his farm. The fact that neither the grain would enter the stream of commerce, nor that the activities involved would be all take place in one locale did not matter. The reasoning was something like, well, if everybody did the same thing, then it would affect interstate commerce, therefore, the federal regulation was legitimate. If that line of thinking were revived, the mandate might well stand. Perish the thought, but there it is.

ugottabekiddingme on March 26, 2012 at 8:44 PM

Hoping ObamaCare is repealed, but still cautious.

I oppose televising the oral arguments, simply because it would enable out of context sound bytes on evening newscasts, and likely cause justices to alter their style of argument.

FYI you can listen to the audio of today’s oral argument here.

netster007x on March 26, 2012 at 8:59 PM

Karl Denninger Chines in….

Noah Feldman’s (and Harvard’s) Folly On Health Reform
By Karl Denninger
http://market-ticker.org/akcs-www?post=203919

The stupid, it burns!

The signature accomplishment of Barack Obama’s administration is on the line. To strike down the Affordable Care Act, the court would have to announce that mandatory insurance coverage is, quite literally, beyond the power of the government.

In economic terms, that would mean saying that universal health care in the U.S. can’t be achieved except through a single-payer system administered entirely by the government, which in political terms seems essentially impossible. If the mandatory coverage provision goes, so does the whole program.

So what?

We could have a nearly-crime-free society if you had to submit to a search every morning and evening, with a camera in your bedroom hooked directly to the NSA. Terrorism risk would be near-nil, there would be no guns and no crime except that which you committed with your bare hands.

We could catalog every instance of a baseball bat or 5-iron and if you didn’t use them for legitimate purpose (e.g. playing baseball or golf) at least once a month, off with your head!

It gets worse, of course. The very name “insurance” is a fraud in this bill and among those discussing it. This is not an attempt to provide insurance (a pool of risk against infrequent but ruinously expensive events) but rather it is an attempt to provide health assurance (a guarantee of outcomes.)

That too is a fraud and doomed to fail; we are not only all genetically unique, and therefore will have disparate health outcomes as a function of things we cannot control but we’re also unique individuals in our decision making as well. Some of us will choose to sit on our asses and stuff our faces, others will choose to jog every day, and still others will choose to be triathletes. Some of us will choose celibacy, others monogamous personal relationships and still others will choose to screw anything that walks. Some of us will smoke, others will drink alcohol. Some will skydive, others scuba dive. All of these choices will have an impact on health outcomes — some for the good, others not so good.

It is inherent in our Constitutional Republic that these outcomes are a matter of personal right — unalienable rights in point of fact. Attempting to level the outcomes is not only impossible, it’s unconstitutional.

There is nothing in the Constitution allowing the Federal government to mandate commerce. Should this law be allowed to stand then the most-ridiculous down to the most-sublime becomes permissible. There is no longer a 4th Amendment or 5th for that matter as your right to property has already been surrendered through the health law, as has your right to be secure in your person — medical records are about as sensitive as it gets, and suddenly it’s all the property of the government.

Obamacare is not so much about health care as it is about whether the Constitution still has meaning. All administrations of the left and right over the last three decades have used it as toilet paper, but now comes Obama through the government and submits that Congress has the power to literally destroy what little recognition remains of unalienable rights.

Whatever the Supremes decide, of course, will not change whether unalienable rights exist. By their very nature no government or judge can remove them — they do exist.

However, should The Supremes decide that the Constitution is just an inconvenient piece of paper and a vestige of days gone by instead of the foundation of this nation, which is what a ruling upholding Obamacare would constitute, then the gang of nine will eventually be forced to stand trial in a much higher tribunal when, not if, public recognition of unalienable rights clashes with what the Supremes have done and this nation is once again are forced to revisit the days of 1776.

May provenance guide both the Supremes and America away from that cataclysm.

SilverDeth on March 26, 2012 at 9:26 PM

A bit of a tangential question, but I’m curious:

How is the Anti-Injunction Act ITSELF considered Constitutional? What gives Congress the authority to tell the Supreme Court what they can rule on and when?

CanofSand on March 26, 2012 at 9:37 PM

Lou Dobbs has Pam Bondi on, the Att General from Florida. I had been hearing that she’s pretty impressive, but she’s a little stuttery tonight.

Jaibones on March 26, 2012 at 10:07 PM

You had better believe I am watching this with great interest.

SilverDeth on March 26, 2012 at 5:45 PM

Nice. I figured you were busy giving Ricky Sanctimonius a shoulder rub or something.

Jaibones on March 26, 2012 at 10:10 PM

A bit of a tangential question, but I’m curious:

How is the Anti-Injunction Act ITSELF considered Constitutional? What gives Congress the authority to tell the Supreme Court what they can rule on and when?

CanofSand on March 26, 2012 at 9:37 PM

CanofSand,

Article III authorizes federal jurisdiction in 9 categories of cases, but Congress must confer that jurisdiction on the lower federal courts with enabling legislation. So there is a gap between the judicial power under the Constitution, and what Congress has actually decided to confer upon lower federal courts.

If Congress takes away jurisdiction over these cases from the lower courts through the AJA, the Supreme Court would not have appellate jurisdiction (since there’d be no original jurisdiction in any lower court), nor would the case fall within the Supreme Court’s original jurisdiction (which only includes “cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party”), thus the Supreme Court would not have subject matter jurisdiction over the cases.

Interestingly, the question you allude to (to what extent can Congress limit the jurisdiction of federal courts) is one of the most complex and hotly contested issues in constitutional law/federal courts :)

righty45 on March 26, 2012 at 10:33 PM

Under the Anti-Injunction Act, people cannot challenge a tax in court until after they have paid it, something that would effectively punt the issue until at least 2015.

Regardless of whether the individual mandate is considered a “tax” or not, I am already paying for Obamacare’s mandates!

My individual Blue Shield health insurance policy has increased from $4,392 to $7,632 per year since Obamacare passed 2 years ago.

Obamacare mandates that insurance companies cover a whole bunch of new “benefits” so it is not surprising that Blue Shield is now charging me more money for these mandatory benefits.

End Obamacare ASAP, “by any means necessary!”

wren on March 26, 2012 at 10:44 PM

Hoping ORomneyCare gets struck down hard by the Supremes… But that is not the end game… That is not the only Mandate out there…

Once ORomneyCare is taking care off… Congress needs to grow a pair and knee-cap RomneyCare Federal moneys… Any Medicare or Medicaid money that RomneyCare uses as it’s prop since it can’t stand on it’s own, needs to be extinguish ala Acorn/Plant Parenthood… MA wants to mandate crap… They can do it on their own without any Federal funds…

Why hasn’t anybody ask Romney if he will continue to prop up RomneyCare Federally… And how is propping up RomneyCare with Federal funds any different then ObamaCare… The money is being paid from the same pocket…

Y314K on March 26, 2012 at 11:25 PM

Nice. I figured you were busy giving Ricky Sanctimonius a shoulder rub or something.

Jaibones on March 26, 2012 at 10:10 PM

You reply to so much of what I write and read so little.

Life’s tough.

It’s tougher when you’re stupid.

SilverDeth on March 27, 2012 at 1:00 AM

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