The Supreme Court heard oral arguments on Obamacare on Monday, Tuesday and Wednesday, and there were more than a few surprises. The hearings lasted for six hours, the longest arguments in 45 years, which speaks to the importance of this issue.
As I wrote last Friday, most observers felt that the vote on the Obamacare mandate that everyone must buy health insurance would be close, most likely a 5-4 vote, one way or the other, with Justice Anthony Kennedy casting the deciding vote. It still looks that way. Here’s a brief summary of what happened during those three days and what is likely to happen next.
Monday, March 26: The Court opened oral arguments with a debate over whether it can even issue a ruling on the Affordable Care Act (“ACA”) since its penalties for not carrying insurance have not come into effect yet. Under a law passed in 1867, the Anti-Injunction Act, a tax cannot be challenged until someone has actually had to pay it. Health reform’s penalties don’t start until 2015. Some argued that the Court can’t make a ruling at this time.
Interestingly, both the plaintiffs and the government believed that the Anti-Injunction Act did not apply in this case and that the Court could rule now. Some felt that the High Court would like to postpone this politically-charged decision at least until after the elections in November. Yet the Justices decided to move forward now.
Tuesday, March 27: This was the highlight of the proceedings since the main topic of the day was the constitutionality of the Obamacare mandate that all Americans must buy health insurance or pay a penalty. The liberal media assumed that while it might be a close vote, the mandate would be upheld. They cited the precedence of Social Security and Medicare as examples of similar government mandates in the past.
Boy, were they in for a surprise! The Obama administration has argued all along that the Obamacare mandate is constitutional largely because of the “Commerce Clause” which gives the government the power to regulate commerce. Yet the states have argued that requiring individuals to purchase health insurance does not qualify as “commerce.”
To the shock of the media, Justice Kennedy let it be known early in the session that he questions the government’s power to do this. Justice Kennedy asked, tongue-in-cheek, “Can you create commerce in order to regulate it?” Kennedy subsequently made several other comments that suggested he is opposed to the mandate.
The conservative Justices on the High Court (save for Justice Thomas who did not speak) are clearly concerned that the mandate, if it stands, would open the door to the government mandating that we buy other things as well, such as healthier food, more fuel efficient cars, etc. Justice Scalia at one point said, “…therefore, you can make people buy broccoli.” Wow!
At the end of the day, even speakers on left-leaning media outlets such as MSNBC and CNN concluded that Tuesday’s arguments over the constitutionality of the mandate had been a “train wreck” for the government, especially given the concerns expressed by Justices Kennedy, Scalia and Roberts.
Wednesday, March 28: Arguments on the final day focused mainly on what would happen to the other parts of Obamacare if the mandate is ruled unconstitutional. Since there was no “severability” clause in Obamacare, the Justices must decide if everything else in Obamacare goes away if the mandate is struck down, or if most everything else can remain in place.
This is a very difficult issue because the mandate is the primary funding mechanism for Obamacare. The insurance companies desperately need the millions of young, healthy people to buy insurance as per the mandate. Without it, it will be virtually impossible for the insurance companies to provide the services Obamacare calls for.
What was clear on Wednesday was that there are Justices on the Court who firmly believe that if the mandate goes away, then all of Obamacare goes away. For the liberals on the Court and in the media, Wednesday was another very troubling day.
Finally, it is always dangerous to read too much into the oral arguments in the High Court. The actual rulings will be made over the next several weeks behind closed doors, with a final announcement not expected until late June. A lot can happen between now and then. But the bottom line is that even some prominent liberals described this week’s Supreme Court proceeding as a “train wreck” for Obamacare.
Late breaking note: A new Rasmussen poll out yesterday found that 54% of likely voters believe the Supreme Court will rule that Obamacare is unconstitutional. That’s huge!
Have a great weekend everyone!