Obamacare’s Tough Day In Court

June 10th, 2011 at 10:58 am | 21 Comments |

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The 11th Circuit has heard argument on the constitutionality of Obamacare. The duelists were Neal Katyal for the government (on loan from Georgetown Law School) against Paul Clement and James Carvin.  These are all heavy hitters.

Focusing on a “hot bench’s” questions is usually a fool’s errand.  Some judges simply like to give lawyers a hard time. Were I pro-Obamacare, however, I would be concerned by one problem.  When Obamacare was initiated, the arguments of its opponents that it was unconstitutional were laughed at by its Congressional supporters and by the President. Moreover, because of Scott Brown’s election the Democrats decided to simply reconcile the bill they had so it did not again need Senate confirmation.

This caused a little noticed problem.  This legislation does not have the common and almost pro-forma “severability clause” which allows a part of the law to stand even if another part is struck down.

These two issues are combining to make this case a horse race.  The 11th Circuit panel (a panel is made up of three members of a broader bench numbering 12 or more) is a mixed bunch of appointees.  The questioning, however, took the arguments of Obamacare’s adversaries seriously.  Even the judge most sympathetic to the government’s position was displeased with Mr. Katyal’s failure to limit the principle of government power he was espousing.

This could doom the legislation in this Circuit.  If judges are worried they are enshrining a principle of government power they do not think they could live with if it came up again they might strike down all or a portion of the law.

There are many ultimate possibilities for this legislation.

First, it is upheld in its entirety and the enlargement of government in economic decisions under the Commerce Clause will have received its greatest judicial boost since the New Deal.  The principle that the Federal Government can make you buy something you are not inclined to buy is far greater than any established before — and the government freely admitted that over 200 years of constitutional decisions provided no example of such a proposition being upheld.

But if only that clause is struck down conservatives may be in trouble.  Obamacare could end up undermining private insurance:  all those who need to buy insurance may well become “free riders”, destroying insurance by buying it only after they are sick.

However, if it is struck down — and the court does not believe the rest of the legislation is severable (read salvageable) — the entire edifice will come crashing down.

The 11th Circuit knows this is going to the Supreme Court.  The Supreme Court denied Virginia’s request to expedite a decision so it will follow its slow course up the chain.  Nothing can be gleaned about the outcome from oral argument except this: the opponents of Obamacare were told they would be laughed out of court.  They have made a fight of it.

The reverse corollary to an Obamacare decision being the greatest judicial approval of unfettered Federal power since the New Deal, is that striking it down would be the greatest blow to judicial liberalism and Central Government unbounded by limits in the economic sphere, as has occurred since the switch in time that saved nine.

A high stakes case, for sure, but this week’s oral arguments were just a curtain raiser for the real drama ahead.

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21 Comments so far ↓

  • Alex 0_0

    John, this sounds convincing and authoritative, but you’re such a whack bigot on gays, I’m not used even reading your stuff anymore…

  • balconesfault

    I don’t think anyone was laughing at the concern that the mandate might be ruled unconstitutional – in fact, quite a few supporters of the ACA shared this concern, and there’s a large body of debate pre-ACA passage as to how healthcare was a special case … where everyone in society could at some point be expected to need to participate in the system and thus could be mandated to pay into the system (as opposed, say, to a mandate that everyone eat at Chinese Restaurants, or buy sneakers…).

    If you think about it – society already has one mandate (albeit enforced at the local level). Wearing clothes. We require everyone in society to wear clothes when they’re outside (even on your own property where it’s visible to the general public) which means that you must acquire and use clothes or be subject to fine. Of course, everyone would argue that this is a very unique case, where the goal isn’t to make people buy clothes but to make sure people are covered by clothes. The same goes with insurance – the idea isn’t to force people to buy insurance, but to make sure people are covered by insurance.

    At the same time, I’m wondering where are all the gun fetishists who in the past have touted the idea that America should be like Switzerland, with mandatory gun ownership?

    That said, this should be a hard battle. It’s not good for this to be an easy precedence. I would hope that if the Supremes accept the mandate, they end up doing so with very narrow parameters that would prevent it from becoming a pathway to all kinds of other government mandates.

    • Nanotek

      “That said, this should be a hard battle. It’s not good for this to be an easy precedence. I would hope that if the Supremes accept the mandate, they end up doing so with very narrow parameters that would prevent it from becoming a pathway to all kinds of other government mandates.”

      balconesfaul … I agree though am opposed to the government compelling a purchase from a private corporation (like insurance companies). Make it like Medicare and that concern vanishes.

      There are plenty of “mandates” by government … but the contours of such an economic mandate could open the floodgates if accepted uncritically by the Supremes. Because the conservative activist judges, who are biased in favor of corporations at the expense of individuals, it appears a crap shoot to me at this point.

  • Smargalicious

    Obamacare is simply one of BHO’s reparations projects: get the people who pay taxes (not the Obama voters) to cough up the dough for everyone’s healthcare.

    NOVEMBER 2012

  • Obamacare score 2 to 2 - Page 5 - SailNet Community

    [...] with Mr. Katyal’s failure to limit the principle of government power he was espousing. Obamacare’s Tough Day In Court | FrumForum __________________ Ray S.V. Nikko 1983 Fraser 41 La Conner, WA [...]

  • Houndentenor

    Smarg, those of us with insurance are ALREADY paying for those who don’t. The new law requires those who can afford it to pay into the system. I don’t know why right wingers are ignorant of how messed up our system is.

    The reparations comment is pure racism so I won’t touch it.

  • John

    the non-severability argument is a red herring. the supreme court has consistently read severability clauses into legislation. to find that a particular provision is non-severable, a court must find that “the balance of the legislation is incapable of functioning independently.” (see, eg., Alaska Airlines v. Brock).

    to echo balconsfault, why are conservatives against the mandate? i get that there’s an instinctive and visceral reaction to being told what to do ‘by the government,’ but i don’t get the backlash in this particular circumstance. are there people who really don’t want health insurance? or are the opponents just pissed that they can’t freeload until they get sick and THEN buy it?

    • balconesfault

      or are the opponents just pissed that they can’t freeload until they get sick and THEN buy it?

      The opponents of the mandate in the ACA, by and large, are just opposed to Obama in general, and in this specific case to the commitment of Federal Tax Dollars in the ACA to subsidize insurance for the working poor who don’t qualify for Medicaid (which is why they’re now so fixated on the severability argument).

      If the mandate had been proposed by a Republican, about 70% of the opposition to it currently would dissolve immediately. The remaining 30% would consist of 15% libertarians, and 15% liberals who are steadfast opposed to corporate involvement in providing healthcare.

      • John

        …but it WAS proposed by a republican – he’s the frontrunner for the republican nomination.

      • ram6968

        ………..working poor…………don’t qualify……..??? who do you think medicaid is for if not the poor??

        • balconesfault

          No … a minimum wage worker can get coverage under Medicaid for their dependent children … but the parent themself qualifies out by earning >27% of the poverty level income.

          It’s not a particularly generous program.

  • jjv

    One good point I want to respond to is John on Alaska Airlines-the comment is absolutely right but it leaves the decision in the Court’s hands rather than where it should have been. Also, the argument exists that the purpose of the legislation is destroyed without the mandate. But I agree that is why its a horserace and not a slam dunk on this issue.

    Balconesfault should be a law professor! Clothes! However, until probably the middle of the 19th century most people made there own in this country. Nudist colonies abound. People walk around naked in their home (uncovered as it were) all the time. No one could choose to be uncovered by Obamacare anytime anywhere even in there homes. Your turn professor!

    • John

      i haven’t seen a persuasive argument that the purpose of the legislation is destroyed without the mandate.

      i’ll take an unsolicited crack at responding to your question to prof balconsfault:

      1. you can choose to be uncovered under obamacare, but you’ll have to pay a tax.
      2. i would distinguish the risks inherent in walking around uninsured vs. walking around without any clothes on. in the latter, you might offend people (especially very impressionable children), and there is a hygeine argument (think public transportation). these risks can be contained to some extent, so walking around naked in your home, or at a nudist colony, or at certain beaches is tolerated. but when you walk around without health insurance, the risk is that you’ll get sick and impose costs on the rest of society (because you can’t be turned away if you show up at an emergency room). thus, the government isn’t so much regulating ‘inactivity’ (not buying insurance) as it is regulating that activity of exposing society to unnecessary risk. its actually the opposite of socialism. for precedent, the court could look to the constitutionality of Taft-Hartly which forbids certain strikes (i.e., regulates the ‘inactivity’ of not working).

  • jcm433

    Dear Conservatives,
    Please stop cheering for the (possible) impending doom of ObamaCare.
    While the law itself may be wiped away, the problems it was created to address will not, and will continue to grow worse and fester over time.
    Nowadays, phrases like “Small government” and “let the markets decide” are all the rage in popular American politics. Think this limited-government pendulum can’t swing in the other direction? Especially if the economy remains rotten? Think again.

    • medinnus

      The dumbass warhawks who pass for “Conservative” these days don’t understand you can’t spend more than the rest of the world combined every year on “Defense” and still have any kind of a limited, small government. The redneck closet-homosexuals like Smeggy aren’t smart enough to have an original thought, so they keep following the brayings of the Tea Party without any kind of qualitative evaluation – it fits right in with their white resentment, bigotry, and religious hatreds.

  • ram6968

    it’s amazing how dense, smart people can be…..if someone has healthcare coverage, they should be all for obamacare because they won’t have to pay for other people’s healthcare,….the problem is the trolls paint obamacare as healthcare you have to buy from thr govt…which is false…the law just says you have to have it, not where you have to get it

  • balconesfault

    if someone has healthcare coverage, they should be all for obamacare because they won’t have to pay for other people’s healthcare

    Well … not true. Because under the ACA the federal government will subsidize to some extent purchase of insurance for workers who currently make too much money to qualify for Medicaid (which as I note above, doesn’t take much).

    Conservatives resent paying for healthcare for anyone else … even if that person is working a 50 hour week. They should be able to find a way to buy a comprehensive healthcare plan out of the few hundred dollars they have left over annually after paying for housing and food and transportation and clothing, etc.

  • Rabiner

    John:

    “The principle that the Federal Government can make you buy something you are not inclined to buy is far greater than any established before ”

    Except everyone is inclined to buy health care.

  • KellyRek

    Buying healthcare is not the same thing as buying healthcare insurance. ObamaCare forces people to use private insurance as the vehicle to purchase healthcare.

    Why is healthcare so expensive? The answer is simple. The healthcare providers were purposely designing themselves to become an oligopoly … so as to guarantee obscene profits. During the early 1900′s, the Rockefellers closed half the medical schools in the U.S.A. This reduced the supply of doctors in the marketplace, thus creating the conditions for super expensive healthcare. (Without competition, prices can stay high.)

    Our healthcare system is a scam. We are being forced to use insurance as a mechanism to pay for the inflated costs of healthcare. The government uses overly stringent licensing requirements and red tape to limit the number of healthcare providers. Of course, this is precisely what the providers want … a captive customer.

    The lobbyists for the healthcare industry had their fingerprints all over the place in the ObamaCare legislation. This bill was to benefit them, the providers … whereas the healthcare consumer is getting screwed big time.

    http://bunkerville.wordpress.com/2011/06/01/how-the-rockefellers-closed-half-the-medical-schools-in-the-united-states/

    http://www.campaignforliberty.com/article.php?view=1458