Supreme Court hears Obamacare case today: What issues will they rule upon?

[Little-Acorn]

Two years ago, Obamacare was passed by Congress on a late-night Christmas Eve vote, with many last-minute promises made to various Congressmen to secure their votes (Obamacare will not require funding for abortions, Obamacare will reduce the cost of Health Coverage, Obamacare will let people keep the coverage they have now if they want to, etc.). After the votes, most of those promises were quickly broken by the Obama administration, but the Congressmen will not be allowed to re-cast their votes accordingly.

Lawsuits were quickly brought against various parts of the Obamacare scheme. In one, twenty-six states sued on grounds that the part of Obamacare requiring everyone to sign up or pay a penalty (the "mandate"), was unconstitutional. Judge Roger Vinson of the District Court of Northern Florida agreed, and also ruled that since (a) there was no language in the law saying that if one part was struck down the other parts would remain in force, and (b) the mandate was critical to the functioning of the entire Obamacare scheme, Judge Vinson ruled that the entire Obamacare scheme must also be struck down. He said at one point that if Congress could find the power to force people to buy health insurance whether they wanted it or not, then Congress must also have the power to force people to buy and eat broccoli whether they wanted it or not, on grounds that it would help the broccoli market AND would result in a healthier populace.

The District Court's ruling was appealed to the 11th Circuit Court of Appeals... and the 11th Circuit agreed with the District Court that the Mandate was unconstitutional and must be struck down. However, the 11th Circuit said that the rest of the law might still remain in force.

The Obamanites appealed to the Supreme Court, and oral arguments for that hearing begin today. They will run for an extraordinary three days, an amount of time not given to a case in the last forty years.

The Supremes will decide four different issues:

1.) In the late 1700s Congress passed the Anti-Injunction Act, which says that the courts cannot rule on a law that has not yet been fully implemented. The Supremes will decide whether this law should apply to the Obamacare case, since Obamacare imposes more and more restrictions and penalties gradually, some of whose deadlines have not yet come about. However, all of Obamacare HAS been signed into law. Can it legally be heard and ruled upon in court now?

2.) Is the mandate constitutional? Congress has the power to regulate commerce between the several states. But do they have the power to force ordinary citizens who are not currently engaged in a certain kind of commerce, to engage in it whether they want to or not?

3.) If the mandate is struck down, is the rest of Obamacare "severable"? Meaning, can the rest of Obamacare remain in force if the mandate is found unconstitutional?

4.) Obamacare also imposes heavy restrictions and regulations on states that receive Medicare funding. Is Congress exceeding the powers spelled out for it in the Constitution, and violating basic principles of Federalism (i.e. intruding upon the powers reserved to the States) by imposing those restrictions and regulations on States receiving Medicare funding?

Many people say the question of the Mandate's constitutionality, is the most important. If the mandate is struck down, even if the rest is left in place, it's generally agreed that the rest of Obamacare will collapse under its own weight, since only sick people will sign up, and will drain the system of all its resources.

Issue #4 above, may have even more far-reaching impact in the long run, than the striking down of the mandate and the resulting collapse of Obamacare's socialist scheme. Congress has long been exceeding the powers given it by the Constitution, relying on astonishingly "flexible" interpretations of the Commerce Clause and Welfare Clause to pretend the Framers intended to give Congress powers that were never written down.

If the Supreme Court rules that Congress has exceeded its powers by imposing these heavy restrictions on States receiving Medicare funding, this may have the effect of slamming to a stop the relentless expansion of Federal powers into areas reserved to the States. This would be an earth-shaking event, and may well signal the beginning of the end of Leftists' cherished desires to impose a Nanny State on the American people.

[jimnyc]

I read an article earlier (will look for it again) which said that the "democrat" sided judges will go with the party line, while the "republican/conservative" side will look to the constitution for a decision in this case. Am I the only one who sees a problem with that?

[Little-Acorn]

I read an article earlier (will look for it again) which said that the "democrat" sided judges will go with the party line, while the "republican/conservative" side will look to the constitution for a decision in this case. Am I the only one who sees a problem with that?

No, you're not the only one.

The Constitution is basically a document stating that the Fed can have certain explicit powers and no others, with the bulk of powers left to the states and the people.

Conservatives see the Constitution as a framework that we should stick to, to build a country free from most government control.

The leftists see the Constitution as an obstacle to the way they think the Fed govt should be: Able to do anything they believe might help people, and with the power to overrule anyone who disagrees.

These two views are so diametrically opposed, that compromise between the two is impossible.

[Little-Acorn]

DAY 1:

I just heard a report on the radio (ABC News) that said that arguments the first day were mostly on whether the "Anti-Injunction Act" prohibited the Courts from hearing Obamacare act at all, before all its provisions are in effect.

The report said that, from the questions the various Justices asked, it sounded like they didn't believe they had to delay their hearing and rendering an Opinion on Obamacare. Sounds like the case will move ahead as scheduled, not get postponed for the next several years.

[Little-Acorn]

On this first of three days or oral arguments before the Supreme Court, the Obamacare lawyers appear to be taking a major beating from liberal and conservative USSC justices alike, over the Obamacare mandate. And they weren't even supposed to be dicussing the mandate at all, on this first day!

You may recall that, back before it was passed, the leftists were insisting that Obamacare would not introduce any new taxes. When people asked about these fines for nonparticipation, the leftists hastily assured everybody they were a penalty, not a tax. They repeated over and over that there were no new taxes in Obamacare. And they even wrote the bill that way, calling them "penalties", never "taxes". They managed to get just enough votes in Congress by persuading a few representatives and Senators that these were not, repeat not, taxes. The Congressmen believed them, and voted Yes.

Fast forward to 201x, and the first lawsuits hitting the courts. Nearly every state had people screaming about this unconstitutional program, and particularly about the mandate which forced you to either join or pay these penalties. A lot of people protested that the govt had no right to force people to buy insurance that way, or penalize them for NOT doing so.

The same leftists that assured us these were penalties (not taxes), now did a complete 180 and announced in court that they were taxes, not penalties. And since Congress clearly has the power to lay and collect taxes, Obamacare was completely constitutional, they told us (now). And they even used that same line in court, telling the District Court of Nothern Florida that Obamacare was constitutional because all these things were taxes, not penalties.

But then reality reared its ugly head. To the leftists' dismay, Judge Vinson actually read the law he was being asked to approve. And he noticed that, in stark contrasts to the leftists' assurance that Obamacare's fines were a "tax", they were described over and over in the law as "penalties". Judge Vinson insensitively declined to be persuaded by the leftists' pleas, and pointed out that while their pleas may be constitutional, the written law was not. And he struck down the mandate. (And also the rest of the scheme).

Today, those same leftists are trying to make the same arguments before the Supreme Court. And they seem to getting no farther with the Supremes, than they did with Judge Vinson. Apparently the Supremes also read the actual law. How rude of them. The Supreme Court justices (both the conservatives and the leftist justices) are giving the leftists' lawyers a pretty good beating over this point. Justice Alito even remarked to one of them, "General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?"

It's gotten so crazy, that the leftist lawyers started twisting themselves into pretzel shapes, trying to have it both ways. One of them even started referring to the penalties as "tax penalties" at times, and "penalty taxes" at other times. I wish I were there to see it - it's getting to be a real three-ring circus in there. And all this is BEFORE they are scheduled to discuss the mandate at all - that comes tomorrow!

[Little-Acorn]

Limbaugh just reiterated a lot of this on his show, remarking on how the Justices were not letting the leftists get away with their usual doublethink - switching their arguments one way or the other and trusting that their audience will fail to remember that what they are saying today, contradicts what they said yesterday.

The most surprising thing about the questions from the Justices, is that conservative AND LIBERAL justices alike, are doing it. Alito and Roberts asked a number of questions about penalties vs. taxes on Monday... but so did Breyer and Sotomayor!

There may be hope yet.

See complete transcripts of the Oral Arguments from Monday, at:
http://www.politico.com/news/stories/0312/74477_Page2.html

There are many pages.

[Little-Acorn]

DAY 2:

Sounds like the justices who normally uphold the Constitution, are directing their questions that way on Tuesday as Oral Arguments focus on the mandate.

Predictably, some of the leftist justices are trying to worm their way out of it. But their arguments seem to be that (in their opinion) striking down Obamacare may be bad for the country; NOT whether striking down Obamacare would be required by the Supreme Law of the Land.

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http://www.politico.com/news/stories/0312/74525.html

Conservative justices skeptical of individual mandate

by CARRIE BUDOFF BROWN and JOSH GERSTEIN
3/27/12 11:07 AM EDT Updated: 3/27/12 12:44 PM EDT

Conservative justices attacked the central provision of President Barack Obama’s health care law Tuesday, expressing deep skepticism that the government can force Americans to buy insurance.

On the second day of oral arguments, the Supreme Court grappled with the linchpin of the legislation — the individual mandate.

Critics of the law argue that if the U.S. government can require Americans to buy medical insurance, it could require virtually anything else that might improve health or lower health care costs, like forcing Americans to join a gym or buy broccoli.

A potential swing vote on the court, Justice Anthony Kennedy, turned to that point early in Tuesday’s session, asking Solicitor General Donald Verrilli Jr. if the government could require purchase of certain food.

“Here the government is saying the federal government has a duty to tell citizens it must act,” Kennedy said, and that changes the relationship between the government and the person “in a fundamental way.”

Verrilli was also asked if the government could require the purchase of cellular phones or burial insurance.

Chief Justice John Roberts argued that if the court says Congress can regulate anything people buy just because of how they pay for it, “all bets are off.”

Today it is health insurance, he said, and then “something else in the next case.”

“Once we accept the principle, I don’t see why Congress’s power is limited,” Roberts said.

The aggressive questioning from conservative justices led Tom Goldstein, the publisher of SCOTUSblog and a prominent Supreme Court litigator, to declare that “there is no fifth vote yet” for the mandate.

“The individual mandate is in trouble—significant trouble,” he said. “The conservatives all express skepticism, some significant.”

During the early questioning, at least three of of the liberal justices, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, challenged the conservative wing.

Ginsburg argued that forcing people to buy food is different than requiring them to purchase insurance, citing a friend-of-the-court briefing that uncompensated care leads to higher costs for all consumers. Uninsured people are passing their costs on to others, and that’s why Congress can regulate them, Ginsburg suggested.

At stake in Tuesday’s arguments is not just the individual mandate but the potential resolution to a bitter political fight between Democrats and Republicans over the limits of government power when it comes to health care.

[Kathianne]

Predicting the outcome of SCOTUS is not a sure fire game. However it looks like Stevens may go with the conservatives, which leaves Roberts. I don't see Roberts enlarging the federal government this much.

I doubt that they will know out the whole enchilada, but if they get rid of the forced to buy clause, it pretty much implodes.

http://www.cnn.com/2012/03/27/justice/scotus-health-care/index.html


...However, Justice Anthony Kennedy said that the federal government "is telling an individual he has the obligation he must act" and purchase insurance.


"That threatens to change the relationship between the government and the individual in a profound way," Kennedy said.


If Congress could regulate health care in the name of commerce, added Chief Justice John Roberts, "all bets are off" on a range of areas subject to federal oversight.


To Toobin, the court's four liberal justices -- Ginsburg, Kagan, Sonia Sotomayor and Stephen Breyer -- were clearly supportive of the law's constitutionality, while conservative justices Samuel Alito and Antonin Scalia appeared certain to rule against the law.


With Justice Clarence Thomas also considered certain to vote on the conservative side, the issue would be decided by the remaining votes of Kennedy and Roberts, Toobin said.


Kennedy, who is considered the swing vote on the divided court, asked tough questions about the mandate and appeared likely to oppose its constitutionality, Toobin said, meaning that the usually conservative Roberts may be the best hope of liberals for the law to be upheld...

[Little-Acorn]

Predicting the outcome of SCOTUS is not a sure fire game. However it looks like Stevens may go with the conservatives, which leaves Roberts. I don't see Roberts enlarging the federal government this much.


Some quotes from Chief Justice Roberts on the subject:


Chief Justice John Roberts argued that if the court says Congress can regulate anything people buy just because of how they pay for it, “all bets are off.”

Today it is health insurance, he said, and then “something else in the next case.”

“Once we accept the principle, I don’t see why Congress’s power is limited,” Roberts said.


Yes, predicting the outcome of a court case is VERY chancy. I am particularly poor at it myself.

But this doesn't sound to me like Roberts is too enamored of the idea of Congress having this much power.

[Kathianne]

Some quotes from Chief Justice Roberts on the subject:



Yes, predicting the outcome of a court case is VERY chancy. I am particularly poor at it myself.

But this doesn't sound to me like Roberts is too enamored of the idea of Congress having this much power.
Yep, sounds like we read him the same way.

Stevens sounds quite against the mandate which is good news.

[Anton Chigurh]

If they were smart they could kick this can down the road - don't give any ruling on it yet. Send it back to the lower court. The reasons I say this are twofold: 1.) Right now there has been no penalty, or tax, collected. Therefore it is open in my mind if the constitution has been violated in reality yet. 2.) There is yet to be anyone forced or coerced to buy anything. Therefore it is open in my mind how this would affect the opinions of the members. They very well might find themselves having to uphold this law given the circumstances. The plaintiffs can show no damages at this point. They should wait until after the election, because if it is a GOP sweep of the WH and the Senate, and if the GOP maintains its majority in the House which I think it will, this is all a quite moot point anyway because Obamacare will be immediately repealed.

[Little-Acorn]

Here are transcripts from the Oral Aguments on Tuesday, Day 2:

http://www.politico.com/news/stories/0312/74537.html

Check out the pages around Pages 68 thru 76 and its neighbors. Justices Kagan and Sotomayor are definitely doing the jobs they were appointed to do. On these pages, they go far beyond the usual asking questions. They are instructing Obama's lawyers on what arguments to use, to win their points and enable a vote upholding Obamacare.

I wish, back when I was in school and taking tests, that I had had the class professor standing by my side and telling me how to answer the problems in the test.

[Kathianne]

Here are transcripts from the Oral Aguments on Tuesday, Day 2:

http://www.politico.com/news/stories/0312/74537.html

Check out the pages around Pages 68 thru 76 and its neighbors. Justices Kagan and Sotomayor are definitely doing the jobs they were appointed to do. On these pages, they go far beyond the usual asking questions. They are instructing Obama's lawyers on what arguments to use, to win their points and enable a vote upholding Obamacare.

I wish, back when I was in school and taking tests, that I had had the class professor standing by my side and telling me how to answer the problems in the test.

I don't think this will help, the 'Act' has serious issues. While the hints may help justify the liberal wing's take on things, seems likely that parts of this Act will be declared unconstitutional.

[Little-Acorn]

Is it November yet?

[fj1200]

Here are transcripts from the Oral Aguments on Tuesday, Day 2:


24 MR. CLEMENT: ...

5 The question that's a proper question for

6 this Court, though, is whether or not, for the first
7 time ever in our history, Congress also has the power to
8 compel people into commerce, because, it turns out, that
9 would be a very efficient things for purposes of

10 Congress' optimal regulation of that market.



Read more: http://www.politico.com/news/stories/0312/74537.html#ixzz1qMXZqhHV



:laugh: :laugh: :laugh:




I also don't like the assumption that because someone is not in the HC insurance market that they are automatically a burden to the rest of society via the insurance companies. Someone could exist just fine with no insurance but accessing medical care when necessary by writing a check. They also assume the entitlement of HC by just showing up. It is only an entitlement that Congress optimal regulation, :laugh: , has already brought about.

[SassyLady]

Thank you LA for keeping us up-to-date on this. Your summaries are excellent.

[Kathianne]

Is it November yet?

There's actually an upside if Obamacare is struck down. He can say 'he tried,' but it is widely unpopular even with Democrats.

[krisy]

This is all so fascinating to me. I love reading what the justices are saying and asking as well as the arguments for and against.

I am wondering tho,why Ginsburg is worried about health cost being passed to others,and at the same time she is a liberal who is probably just fine with food stamps that are payed for by tax dollars and are given to lots of people that don't deserve them ,not to mention all the fraud that also comes with food stamps. It is also making some people pay for other people's care.

[Little-Acorn]

This is all so fascinating to me. I love reading what the justices are saying and asking as well as the arguments for and against.

I am wondering tho,why Ginsburg is worried about health cost being passed to others,and at the same time she is a liberal who is probably just fine with food stamps that are payed for by tax dollars and are given to lots of people that don't deserve them ,not to mention all the fraud that also comes with food stamps. It is also making some people pay for other people's care.

I would guess that Ginsburg wants the costs to be passed on to CERTAIN others, i.e. she thinks it's OK to "soak the rich" but not OK to soak people she doesn't approve of being soaked.

You make an interesting point about liberals wanting to pass the costs on to others, objecting to the present way costs are passed on to others.

I believe the answer is, that the liberals want control, even more than they want the wealth spread around. They want to be able to dictate WHO pays, not just that certain people don't pay.

My $.02

[Little-Acorn]

DAY 3:

Here's transcripts from at least the morning of Wednesday's oral arguments. I guess there may be more coming out later. Haven't had time to read much this morning, it's hell at work today.

http://www.politico.com/news/stories/0312/74596.html

The first few pages document Sotomayor's lecturing one of the anti-Obamacare lawyers, that Obamacare will work just fine, even without the mandate, as long as it's fine-tuned just right. She even interrupts him and tries to steer his replies.

I wonder if/when she will later stop arguing one side of the case, and become a Supreme Court Justice again. But she's definitely doing the job Obama appointed her to do: Promote liberalism wherever and whenever she can, "I swear to defend the Constitution" oath be damned.

A few excerpts:



MR. CLEMENT:If you do not have the individual mandate to force people into the market then community rating and guaranteed-issue will cause the cost of premiums to skyrocket. We can debate the order of magnitude of that but we can't debate that the direction will be upward. We also can't debate -*

JUSTICE SOTOMAYOR: Counsel, that may well be true. The economists are going back and forth on that issue, and the figures vary from up 10 percent to up 30. We are not in the habit of doing the legislative findings. What we do know is that for those States that found prices increasing, that they found various solutions to that. In one instance, and we might or may not say that it's unconstitutional, Massachusetts passed the mandatory coverage provision. But others adjusted some of the other provisions. Why shouldn't we let Congress do that, if in fact, the economists prove, some of the economists prove right, that prices will spiral? What's wrong with leaving it to — in the hands of the people who should be fixing this, not us?

MR. CLEMENT: Well, a couple of questions -* a couple of responses, Justice Sotomayor. First of all, I think that it's very relevant here that Congress had before it as examples some of the States that had tried to impose guaranteed-issue and community rating and did not impose an individual mandate. And Congress rejected that model. So your question is quite right in the saying that it's not impossible to have guaranteed-issue and community-rating without an individual mandate. But it's a model that Congress looked at and specifically rejected. And then, of course, there is Congress's own finding, and their finding, of course, this is (i), which is 43(a)of the government's brief in the appendix, Congress specifically found that having the individual mandate is essential to the operation of guaranteed-issue and community-rating.

JUSTICE SOTOMAYOR: That's all it said it's essential to. I mean, I'm looking at it. The exchanges, the State exchanges are information- gathering facilities that tell insurers what the various policies actually mean. And that has proven to be a cost saver in many of the States who have tried it. So why should we be striking down a cost saver when if what your argument is, was, that Congress was concerned about costs rising? Why should we assume they wouldn't have passed that information?

MR. CLEMENT: I think a couple of things. One, you get — I mean, I would think you are going to have to take the bitter with the sweet. And if Congress — if we are going to look at Congress's goal of providing patient protection but also affordable care, we can't — I don't think it works to just take the things that save money and cut out the things that are going to make premiums more expensive. But at a minimum -*

JUSTICE SOTOMAYOR: I want a bottom line is why don't we let Congress fix it?

[Missileman]

I would guess that Ginsburg wants the costs to be passed on to CERTAIN others, i.e. she thinks it's OK to "soak the rich" but not OK to soak people she doesn't approve of being soaked.

You make an interesting point about liberals wanting to pass the costs on to others, objecting to the present way costs are passed on to others.

I believe the answer is, that the liberals want control, even more than they want the wealth spread around. They want to be able to dictate WHO pays, not just that certain people don't pay.

My $.02


Their goal is to get every healthcare dollar funnelled through DC where it can be diverted to liberal causes other than healthcare. It will be the SS trust fund, part deaux. When it comes down to needing money to pay for a procedure, it will have been spent on some neato project like Solyndra and we'll all be left in the lurch.

[Little-Acorn]

And the hits just keep on coming.

Supreme Court justices are finding more and more strange stuff in the Obamacare bill, and sometime just break out in laughter at the craziness.

This is what happens when sensible people get the chance to examine in broad daylight, programs and schemes the liberals have been keeping hidden behind walls of bluster, propaganda, and disingenuous rhetoric.

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http://campaign2012.washingtonexaminer.com/blogs/beltway-confidential/scotus-laughs-senator-over-cornhusker-kickback/451151

SCOTUS laughs at senator over Cornhusker Kickback

byJoel Gehrke

Sen. Ben Nelson, D-Neb., proved the unnamed butt of a joke at the Supreme Court hearing today, as the courtroom chuckled at Justice Scalia's suggestion that the court overturn the "Cornhusker Kickback" because it amounted to bribery.

Scalia used the Cornhusker Kickback in a question about the principle of severability. "[I]f we struck down nothing in this legislation but the -- what you call the corn husker kickback, okay, we find that to violate the constitutional proscription of venality, okay?" Scalia said, drawing laughter throughout the courtroom. Venality means "the quality or principle of being for sale," and is associated with bribery.

"When we strike that down, it's clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the corn husker kickback is bad. That can't be right."

Attorney Paul Clement argued that "it can be [right]" because "it's congressional intent that governs," and -- with respect to the individual mandate -- Obamacare would not have passed into law, because the individual mandate is an essential feature of the law.

"Cornhusker Kickback" is a derisive term for the deal that Senate Majority Leader Harry Reid, D-Nev., brokered with Nelson in order to get his essential 60th vote in support of Obamacare. In the deal, Nebraska received an exemption from the expense of Medicaid expansion.