The Case of the Century

November 14th, 2011 at 10:36 am | 25 Comments |

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The U.S. Supreme court has agreed to hear essentially all of the challenges to the constitutionality of the Affordable Care and Protection Act, President Obama’s health care law. The AP is reporting that there will be five hours of oral arguments in March or April, after all of the briefs are submitted.

Since both the government and the challengers requested that the Court hear the cases, this order is not a surprise. But it will likely be the most significant oral argument, and constitutional decision to follow since the Watergate tapes case in 1974. I will follow up as the briefs are submitted.

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25 Comments so far ↓

  • Houndentenor

    For those who think SCOTUS will rule against this:

    How would they find this unconstitutional but leave Medicare (which all seniors are required to be part of) intact? Or do you think they should rule against all federal mandates for health care?

    • Graychin

      Seniors are NOT required to enroll in Medicare. But almost everyone does.

      Almost everyone is required to pay Medicare taxes on their wages. You are welcome to decline benefits when you turn 65.

      • kirk

        I am not required to use my medical coverage and simply pay the co-pay at my Doctor. Almost everyone does that too.

  • Watusie

    I thought it was very interesting that the Obama Administration was pushing to have this case heard before the election. Seeing the decision out of the DC court last week makes me understand why.

    • Kevin B

      If the Affordable Care Act is held to be constitutional, or even if it is held to be constitutional with the exception of the individual mandate, the President can claim victory going into the next election. In any case, the question will be mostly settled, (and the economy will instantly rebound due to the lifting of the uncertainty).

      Also, if the case were to be heard after the election, and President Obama were to lose the election, the case would have to be defended by the new Republican administration.

  • Graychin

    Three circuit courts have ruled on the merits of the ACA / Obamacare. Two found it constitutional. A third, the Eleventh Circuit found the mandate to be unconstitutional (by a 2-1 vote) but upheld the rest of the law. A fourth dismissed the challenges for lack of standing.

    How will Anthony Kennedy vote? The other eight justices seem very predictable to me.

  • Solo4114

    In fairness, the century isn’t really all that old.

  • Fart Carbuncle

    My prediction is similar to what another lower court ruled: the SCOTUS will declare all but the individual mandate constitutional. And this would beg another issue–what good is it then? Why have the law?

    I’m thinking that if the GOP gets the Senate and WH next year, a repeal will make the discussion moot.

    • jdd_stl1

      F.C.

      Do you see any possibility that if the SCOTUS upholds the law that
      it might help the Democrats in the Senate to have the strength to
      obstruct any Republican (assuming they gain Senate majority and WH)
      attempt to repeal?

      • Fart Carbuncle

        No, not necessarily. Depending on the poltical winds the GOP may have a supermajority for the first 2 years; that’s what they are hoping for. We’ll see.

    • more5600

      The Republicans better have 60 solid votes in the Senate or they aren’t going to repeal anything.

    • Kevin B

      My prediction is similar to what another lower court ruled: the SCOTUS will declare all but the individual mandate constitutional. And this would beg another issue–what good is it then? Why have the law?

      There is much more to the the Affordable Care Act than the individual mandate, and much of it is popular. Holding the individual mandate to be unconstitutional just puts the government in the position of finding another way to make it work, with a lot of encouragement from the Big Insurance Lobby.

      • Ann Thomas

        Careful what you wish for, conservatives. If the mandate is ruled unconstitutional, this would embolden those pushing for universal healthcare. And that would actually address costs, which the insurance lobby is afraid of. Trust me, the Affordable Health Care Act is embraced by insurance companies, especially if the mandate is upheld. So if Republicans “win” this, the will face anger from the Insurance lobby, seniors who lose the donut hole benefits, college students who are allowed to stay on their parent’s insurance longer (and the parents who appreciate that) people who are no longer discriminated against due to pre-existing conditions, etc. So no matter what the Supreme Court rules, it will be a win for the Obama Administration. It’s easy to bash “Obamacare” and it’s great red meat for the base, but when people realize what that really means-and how this move will actually increase the deficit-it might not be such a popular move. Especially since the Republican Party has no alternative. As Frum pointed out long ago, the Affordable Care Act is just a glorified package of GOP ideas so if they weren’t all about attacking Obama, they’s be embracing the elements and even taking some credit. Instead, people like Romney are running away from it and showing-once again-they only care about the rich and corporations. Uninsured? In debt because you spend so much on medical bills for your disabled child? Tough luck.

  • Southern Populist

    If the SCOTUS does uphold this law, the case will go down in history. It will be a household name like Plessy vs. Ferguson (sp?), Brown vs. Board of Education and Roe vs. Wade.

    • dante

      Doubtful. The court has already ruled on the Interstate Commerce clause, and to rule the mandate unconstitutional would require them to overturn (or at the very least give a narrow ruling similar to the Bush v Gore case) previous cases.

      If it is ruled unconstitutional I’d expect something more similar to Citizens United, where blatant hypocrisy on the part of some justices is in full view…

    • Solo4114

      Not really, no. It’ll be more on par with Heart of Atlanta Motel v. U.S. An important — I daresay essential — case, but hardly a “household name.”

  • Oldskool

    But will they expand the case to cover other things on their to-do list, like they did with Citizens United. After that one, nothing they do will surprise me.

  • Rossg

    If this thing is declared unconstitutional, I want a full refund of my Medicare and Social Security payments for the past 37 years. The seniors can find their own insurance, on the open market (just as I expect I will have to do in about 7 years). By the way, most seniors sign up for Medicare because, let’s face it, at 65 years old, how many of them have been rendered uninsurable by the for-profit marketplace?

  • busboy33

    I’m not sure why the Administration is pushing for this to be heard before the election.

    I think they’ll uphold the mandate (though I disagree with it), but if the Supremes do give the APA a green light then the GOP has their perfect “red meat” get-out-the-vote issue — electing Reds so we can pass a Constitutional Amendment overturning it.

    Granted, that makes absolutely no sense, but the GOP loves to run on the Constitutional Amendment issue. They seem to drag something out to make an Amendment issue every election . . . and this is a freebie of epic proportions.

    • Solo4114

      Not every election, but yes, there’s frequently some issue like this that gets used. It’s just another way to mobilize. But make no mistake — if it wasn’t PPACA, it’d be something else.

      It wouldn’t require a constitutional amendment either. Simply overturning the legislation would do the trick. The thing is, if they don’t win this case, don’t win the White House in 2012, and don’t control enough of the legislature to force the issue through, it’ll stick. A big part of the reason for the all-out assault on PPACA is because so much of it has yet to take effect. Once it does, it’ll be a LOT harder to undo it. Especially anything involving freebies for the American public. Any time you give the public free stuff, you will NEVER get to take it away from them. PPACA does plenty of that, so a full repeal will be basically impossible. There’ll still be the opportunity to chip away at the edges of it or modify this or that aspect of the program, but hell, that’s been going on with Medicare for ages.

      I suspect the administration is pushing for this because they want it decided ASAP and, ideally, prior to the election, and because they strongly suspect that the law will be either upheld in full, dodged completely (the fourth question that the Court will address does give them the opportunity to sidestep the whole thing), or at least not fully overturned. Losing the individual mandate will make life difficult, but it won’t be a catastrophic loss. The whole house of cards doesn’t fall without the mandate, but it does require you to buttress the law some other way.

      • busboy33

        But if its upheld prior to the election, that lights a fire under the “Socialism” base. Unless we win this election, America is over! Conversely, if the issue is still floating, then “hey, why don’t we wait for the Right-leaning Supremes to slap it down” might sap some of the fire from their bellies. As it stands now, the issue is there but most of the manic rage has died down. A Supreme stamp of approval, especially 6-8 months before the election, brings it center-stage with emotional intensity.

        Right now (and granted, “right now” is a far cry from election night), I’m seeing a lack of enthusiasm from all but the Rabid Right, whereas the Left is running with some surprising energy.

        I don’t disagree with your assessment per se, I just think this has a good chance of backfiring on the Administration. As someone who plans on voting for Obama over anybody but Huntsman, I hope I’m wrong . . . but the PR angle looks fraught with peril for the Left to me.

        • Solo4114

          Eh, the way I see it, this issue just provides a framework to the underlying emotional drive to get rid of Obama. I mean, if you’re talking about the “Socialism!” base, they’re also the “Muslim Kenyan very bad person!” base. It’s not like they really NEED any reason to mobilize. Their reason is sitting in the White House (well, actually, off to Australia today, but you get my point).

        • busboy33

          Touche.