SCOTUS Tackles Obamacare: Buyer Beware

The Democrats just had to try to “fix” the greatest Healthcare System in the world, didn’t they?

The United States Supreme Court begins hearings this week on Obamacare, Obama’s National Healthcare Monster that was shoved down Americans’ collective throat by the Obama Administration and their lackeys in the then-Democratic-controlled Congress.

I have an inkling that the Administration is a wee bit concerned as to how SCOTUS is going to rule.

Neal Katyal, who as acting US Solicitor General defended the constitutionality of President Barack Obama’s flagship health reform in lower courts, has warned in an interview with AFP of “grave” and “profound” consequences if the Supreme Court accepts a challenge to the law.

Q:) Experts say that this Supreme Court challenge is historic. Why so?

A:) The case that’s coming before the Supreme Court which challenges Congress’s Affordable Care Act is undoubtedly a significant case. It’s rare for a president’s signature initiative to come before the Supreme Court and be challenged as unconstitutional.

Q:) The requirement for each individual to have health insurance coverage is central to the president’s reform. Can the law survive without that measure?

A:) It’s a hard thing to imagine that the law, that all of the rest of the law would survive if the individual mandate is struck down, because Congress when they passed the Affordable Care Act, said: ‘We want to get rid of discrimination against those who have pre-existing conditions to make sure that insurers are going to insure everyone at a fair cost’. And if you get rid of the provision that says everyone has to carry insurance, then you’re really effectively undoing the logic of the ban on discrimination of those with pre-existing conditions.

Q:) In what way could the individual mandate by judged “unconstitutional”?

A:) The challengers to the reform say that never before has the government forced people to buy a product. We’re not forcing you to buy a product. Health care is something all Americans consume, and you don’t know when you’re going to consume it. You could get struck by a bus, you could have a heart attack and the like. And if you don’t have health insurance, then you show up at the emergency room. The doctors are under orders to treat you — as any Western, any civilized society would do. And who pays for that? Well, ordinary Americans pay for that. They’re the ones who have to pick up the tab for those who don’t have insurance. We are not regulating what people buy, we’re regulating how people finance it.

Excuse me, when something is mandated, doesn’t that mean you HAVE TO do it?

Todd Gaziano details SCOTUS’ schedule at

Six hours of oral argument will be conducted in four sessions, spread over three days. That’s what the Supreme Court has allocated for the cases challenging the constitutionality of the Patient Protection and Affordable Care Act (aka Obamacare).

The arguments begin Monday, as attorneys representing 26 states, the National Federation of Independent Business (NFIB), and a few of its individual members square off against U.S. Solicitor General Donald B. Verilli, Jr. and one of his deputies. Other attorneys appointed by the Supreme Court will join the fray on two issues. Here’s the schedule and the line-up for the arguments.

Monday, March 26, 10:00 a.m. (90 mins. of argument).

The Issue: Is the challenge to the Obamacare mandate ripe for a court challenge?

The 145-year-old Anti-Injunction Act (AIA) provides that courts may not hear most cases to block tax collections until the challengers first pay the tax and seek a refund. The individual mandate in Obamacare doesn’t kick in until 2014, and one court ruled that no one may challenge it until they pay the penalty for not buying insurance in 2015. The United States no longer takes that position; it thinks the AIA doesn’t apply to the mandate penalty because it is not a tax. The challengers argue there are four other reasons why the AIA doesn’t apply.

Since the administration agrees with the challengers on the AIA, the Court appointed a private attorney—Robert A. Long, Jr.—to argue the other side. Long will present the first 40 minutes of argument. He’ll be followed by Verrilli, who has 30 minutes allotted. Gregory G. Katsas, representing NFIB and the states, will have the final 20 minutes to argue that the AIA creates no obstacle to challenging the mandate.

Tuesday, March 27, 10:00 a.m. (two hrs. of argument)

The Issue: Does the Constitution give Congress the power to compel individuals to purchase particular financial instruments?

While Monday’s session will be largely technical, Tuesday’s session is the main event. Verrilli will argue that the Constitution’s Commerce and the Necessary and Proper Clauses give Congress all the authority it needs. Verilli will also argue that the mandate penalty is a “tax” for constitutional purposes. The challengers are represented by former Solicitor General Paul Clement, arguing on behalf of the 26 states, and Michael Carvin, speaking on behalf of NFIB, who will each have 30 minutes before the justices. Clement and Carvin will contend that, in imposing the mandate, Congress exceeded its authority, and that the penalty is not a constitutional tax. In addition, they will argue that if the mandate is allowed to stand, Congress would have virtually unlimited power to require citizens to buy anything or do anything.

Wednesday, March 28, 10:00 a.m. (90 mins. of argument)

The Issue: If the mandate must go, can the rest of the law survive?

The challengers maintain that, if the Court strikes down the mandate, it should invalidate the rest of the law as well. The administration will argue that a few related provisions would have to go if the mandate is found to be unconstitutional, but the rest of the law should remain in force. The Court appointed an amicus counsel, H. Bartow Farr, III, to stake out a third position: that the mandate is completely severable, so nothing else in Obamacare needs to change even if the Court gives the mandate the heave-ho. Clement will speak for the challengers and Deputy Solicitor General Edwin S. Kneedler will represent the administration.

Wednesday, March 28, 1:00 p.m. – (one hr. of argument)

The Issue: Does Obamacare’s huge expansion of Medicaid and the conditions for any federal funding of it violate basic principles of federalism?

Clement will argue that the law effectively coerces states to participate in a radically more expansive Medicaid program than what they have worked under for decades. In the early years of the expansion, slated to begin in 2014, the feds will supposedly pick up all the new costs. But the states argue the expansion will impose massive new costs almost immediately, which will only increase in future years when the federal government decreases its payments. Verrilli will argue that the federal government can alter the terms of the federal-state program any time it wants to and, if the states don’t care for the changes, they can just opt out of Medicaid.

The Supreme Court does not allow oral arguments to be broadcast live, either on TV or radio. For this case, it will release an audio tape of the arguments a few hours after they conclude. For more timely reports on the arguments, check the Foundry, where reports and pod casts will be posted soon after the sessions’ closings.

By the way, since its passage, Obamacare has turned out to be a heck of an investment for the Obama Administration.  That is to say, its worth has more than doubled since its “birth”:

President Obama’s national health care law will cost $1.76 trillion over a decade, according to a new projection released today by the Congressional Budget Office, rather than the $940 billion forecast when it was signed into law.

Democrats employed many accounting tricks when they were pushing through the national health care legislation, the most egregious of which was to delay full implementation of the law until 2014, so it would appear cheaper under the CBO’s standard ten-year budget window and, at least on paper, meet Obama’s pledge that the legislation would cost “around $900 billion over 10 years.” When the final CBO score came out before passage, critics noted that the true 10 year cost would be far higher than advertised once projections accounted for full implementation.

Have you ever bought a used car whose repair bill turned out to be more than its net worth?  Well, that’s what Obama and the Democrats gave us with their passage of Obamacare.

Hopefully, the Supreme Court will  take this lemon off of our hands.

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