Supreme Court agrees to hear Obama healthcare law

[C_Clayton_Jones]

Landmark's Amicus Brief on Obamacare

This brief reads like an op-ed piece from a Heritage Foundation blog author.

The individual mandate isn't intended or designed to raise revenue. That's a misconception.

Correct.

But see? This is what they are arguing...it is NOW a TAX...before it was a TAX...Nevermind it forces Commerce...or go to jail for not participating.

Incorrect.

The ACA has no provisions for criminal prosecution whatsoever:

[T]hen, the Act does not treat the mandate like a tax, as it prohibits the IRS
from using its most salient enforcement tools in collecting the penalty. The IRS may not
place a lien on the property of an individual who does not comply with the mandate and
does not pay a penalty. See id. § 5000A(g)(2)(B). Not so for individuals who fail to pay
their taxes. See id. § 6321. The IRS may not use its “levy” authority, prohibiting it from
garnishing wages or seizing property from individuals who fail to obtain insurance. See
id. § 5000A(g)(2)(B). Not so for individuals who fail to pay their taxes. See id. § 6331.
And the IRS may not initiate a criminal prosecution against individuals who fail to buy
insurance. See id. § 5000A(g)(2)(A). Not so for individuals who fail to pay their taxes.
See id. § 7201. As it turns out, all the IRS may do to enforce the penalty is set off unpaid
penalties against an individual’s refund (if there is one) or launch a civil action against
the individual. See id. §§ 6402(a), 6502(a), 7401 et seq.

The Thomas More Law Center case provides an excellent outline as to what the Court will review.

The Court will review the issue of ‘presumed constitutionality’:

The minimum coverage provision, like all congressional enactments, is entitled
to a “presumption of constitutionality,” and will be invalidated only upon a “plain
showing that Congress has exceeded its constitutional bounds.” United States v.
Morrison, 529 U.S. 598, 607 (2000). The presumption that the minimum coverage
provision is valid is “not a mere polite gesture. It is a deference due to deliberate
judgment by constitutional majorities of the two Houses of Congress that an Act is
within their delegated power . . . .” United States v. Five Gambling Devices, 346 U.S.
441, 449 (1953).

Constitutional case law and precedent:

Recognizing that uniform federal regulation is necessary in some instances, the
Commerce Clause of the Constitution grants Congress the power “[t]o regulate
commerce with foreign Nations, and among the several States, and with the Indian
Tribes.” U.S. Const. Art. I, § 8, cl. 3. The Supreme Court has held that Congress has
broad authority to regulate under the Commerce Clause. From 1937 to 1994 it did not
invalidate a single law as unconstitutional for exceeding the scope of Congress’s
Commerce Power. The Court has explained that Congress’s Commerce Clause power
encompasses three broad spheres: (1) “the use of the channels of interstate commerce”;
(2) “the instrumentalities of interstate commerce, or persons or things in interstate
commerce”; and (3) “those activities having a substantial relation to interstate
commerce, . . . i.e., those activities that substantially affect interstate commerce.” Lopez,
514 U.S. at 558-59.

Why the individual mandate is Constitutional:

By regulating the practice of self-insuring for the cost of health care delivery, the
minimum coverage provision is facially constitutional under the Commerce Clause for
two independent reasons. First, the provision regulates economic activity that Congress
had a rational basis to believe has substantial effects on interstate commerce. In
addition, Congress had a rational basis to believe that the provision was essential to its
larger economic scheme reforming the interstate markets in health care and health
insurance.

And the issue of ‘regulating inactivity’:

Thomas More argues that the minimum coverage provision exceeds Congress’s
power under the Commerce Clause because it regulates inactivity. However, the text of
the Commerce Clause does not acknowledge a constitutional distinction between activity
and inactivity, and neither does the Supreme Court. Furthermore, far from regulating
inactivity, the provision regulates active participation in the health care market.

[F]ar from regulating inactivity, the minimum coverage provision regulates individuals who are, in the aggregate, active in the health care market. The Supreme Court has stated that “when it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented [Congress] may do so.” Westfall v. United States, 274 U.S. 256, 259 (1927). The vast majority of individuals are active in the market for health care delivery because of two unique characteristics of this market: (1) virtually everyone requires health care services at some unpredictable point; and (2) individuals receive health care services regardless of ability to pay.

Virtually everyone will need health care services at some point, including, in the
aggregate, those without health insurance. Even dramatic attempts to protect one’s
health and minimize the need for health care will not always be successful, and the
health care market is characterized by unpredictable and unavoidable needs for care.

Health insurance is available to everyone. Like any other commodity, it has to be purchased. Those that cannot afford coverage have a number of options available in the form of social programs. We do not need another expensive and impossible to administer entitlement plan.

As Judge Sutton correctly noted in Thomas More Law Center, just because a law is bad, doesn’t mean it’s un-Constitutional. The remedy is legislative, not judicial.

It’s also incorrect that ‘[t]hose that cannot afford coverage have a number of options available in the form of social programs.’ Adults between the ages of 18 and 65 with no deprived minor children and are not established disabled by the Social Security Administration or by a given state’s disability unit are not eligible for Medicaid or any other medical program.

The ACA law IS a tax.

The ACA is not a tax:

The individual mandate is a regulatory penalty, not a revenue-raising tax, for
several reasons. First, that is what Congress said. It called the sanction for failing to
obtain medical insurance a “penalty,” not a tax. Words matter, and it is fair to assume
that Congress knows the difference between a tax and a penalty, between its taxing and
commerce powers, making it appropriate to take Congress at its word. That is all the
more true in an era when elected officials are not known for casually discussing, much
less casually increasing, taxes. When was the last time a candidate for elective office
promised not to raise “penalties”?

Second, the legislative findings in the Act show that Congress invoked its
commerce power, not its taxing authority. “The individual responsibility requirement,”
Congress explained, “is commercial and economic in nature, and substantially affects
interstate commerce . . . . ” 42 U.S.C. § 18091(a)(1). Other findings come to the same
end.

Link for the cited above:

http://www.ca6.uscourts.gov/opinions.pdf/11a0168p-06.pdf

 

[dblack]

how is the mandate different from having to contribute to social security?

Social Security is a program administered by out government. Insurance is a private, for-profit service. The government has a legitimate authority to force us to pay for its services (even if we don't want to). Insurance corporations do not - or rather, shouldn't. The ACA essentially grants them the power to tax us. It's the epitome of taxation without representation.

 

[dblack]

The individual mandate isn't intended or designed to raise revenue. That's a misconception.

It's not designed to raise revenue for the state. It IS designed to raise revenue for the insurance industry. That's the whole point, to compensate them for the losses that will result from being forced to 'insure' people who are already sick.

 

[dblack]

The ACA has no provisions for criminal prosecution whatsoever.

This argument is equivocation and deception. They're talking out of both sides of their mouths. They can say there are no criminal penalties for not paying the fine, but there are definitely criminal penalties for not paying your taxes, which is why they chose the IRS as their collection agency.

The ACA is not a tax

More equivocation. From the Obama administration's point of view, it's apparently both a tax and not a tax, depending on which crap they're trying to fling on that wall at the time.

 

[dblack]

The only reason insurance companies are in loop is they spend 150 million lobbying Congress to block the single payer system which would have provide much lower cost coverage.

Whatever. The reasons the law is fucked up don't interest me as much as how we're going to get rid of it.

 

[M14 Shooter]

Link for the cited above:
http://www.ca6.uscourts.gov/opinions.pdf/11a0168p-06.pdf

Is the SCotUS was bound by CA6 decisions?
If not, then the authority of your citations is, well, diminuitive.

 

[M14 Shooter]

I'll ask again:

On what basis are people who decide to not buy/get insurance being punished?
Did they commit a crime? Where's the trial?
Is it a civil penalty? What cost have they incurred to the government?

 

[JakeStarkey]

M14, the SCOTUS is not interested in your questions. The justices will be concerned only with the issue of Congress having the power to regulate an interstate commerical interest, insurance companies.

 

[Liability]

M14, the SCOTUS is not interested in your questions. The justices will be concerned only with the issue of Congress having the power to regulate an interstate commerical interest, insurance companies.

Probably incorrect, Fakey.

It is, in fact, quite likely that the SCOTUS WILL be pretty fucking interested in the issue of whether the "penalties" constitute a "tax" or not --

as long as we're talking about the issue of whether there is or isn't any Constitutional authority to do this kind of thing.

 

[Liability]

I'll ask again:

On what basis are people who decide to not buy/get insurance being punished?
Did they commit a crime? Where's the trial?
Is it a civil penalty? What cost have they incurred to the government?

Good questions.

Fakey's rejoinder notwithstanding.

 

[Liability]

The mandate is designed EXACTLY to raise revenue.

The individual mandate is projected to bring in about $3-4 billion in revenues per year, a comparatively miniscule amount. Its purpose is not to raise revenues.

Your President has already said otherwise.

 

[M14 Shooter]

M14, the SCOTUS is not interested in your questions. The justices will be concerned only with the issue of Congress having the power to regulate an interstate commerical interest, insurance companies.

Probably incorrect, Fakey.

It is, in fact, quite likely that the SCOTUS WILL be pretty fucking interested in the issue of whether the "penalties" constitute a "tax" or not --

as long as we're talking about the issue of whether there is or isn't any Constitutional authority to do this kind of thing.

Absolutely.
After all, the government only has the power to tax in order to provide revenue to spend on the general welfare/common defense -- not to punish people for not following civil law.

 

[BenNatuf]

M14, the SCOTUS is not interested in your questions. The justices will be concerned only with the issue of Congress having the power to regulate an interstate commerical interest, insurance companies.

Maybe you should actually read the questions that were granted cert.

 

[BenNatuf]

The mandate is designed EXACTLY to raise revenue.

The individual mandate is projected to bring in about $3-4 billion in revenues per year, a comparatively miniscule amount. Its purpose is not to raise revenues.

Your President has already said otherwise.

pffft... even liberals don't pay any attention to what he says anymore.

 

[M14 Shooter]

M14, the SCOTUS is not interested in your questions. The justices will be concerned only with the issue of Congress having the power to regulate an interstate commerical interest, insurance companies.

Maybe you should actually read the questions that were granted cert.

-That- would require intellectual honesty.

 

[Navy1960]

This is what the SCOTUS will hear..

1. Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress‘s spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?
2. May Congress treat States no differently from any other employer when imposing invasive mandates as to the manner in which they provide their own employees with insurance coverage, as suggested by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), or has Garcia‘s approach been overtaken by subsequent cases in which this Court has explicitly recognized judicially enforceable limits on Congress‘s power to interfere with state sovereignty?
3. Does the Affordable Care Act‘s mandate that virtually every individual obtain health insurance exceed Congress‘s enumerated powers and, if so, to what extent (if any) can the mandate be severed from the remainder of the Act?

http://www.supremecourt.gov/docket/PDFs/11-400 Cert Petition.pdf

 

[deaddogseye]

Looks like it'll come down to how one man votes, Kennedy I think. 5-4 split vote is highly likely, one person will make the call.

That isn't really how it should be for something like this. The dems will never agree to this, but they oughta scrap the whole damn thing and do it right this time with enougn bipartisan support to avoid a SCOTUS decision. I suppose that's asking for too much, we don't have enough pols who are willing to make a tough call that's in the best interests of the country rather than what's best for themselves or their party.

This may have been said elsewhere but if its 5-3 to uphold when it gets to roberts, he votes last, he could vote for it as well making it 6-3. This would allow him to control the writing of the majority opinion. not saying this will happen but it could and its no secret that it has in the past

 

[BenNatuf]

This is what the SCOTUS will hear..

1. Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress‘s spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?
2. May Congress treat States no differently from any other employer when imposing invasive mandates as to the manner in which they provide their own employees with insurance coverage, as suggested by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), or has Garcia‘s approach been overtaken by subsequent cases in which this Court has explicitly recognized judicially enforceable limits on Congress‘s power to interfere with state sovereignty?
3. Does the Affordable Care Act‘s mandate that virtually every individual obtain health insurance exceed Congress‘s enumerated powers and, if so, to what extent (if any) can the mandate be severed from the remainder of the Act?

http://www.supremecourt.gov/docket/PDFs/11-400 Cert Petition.pdf

They also granted cert to one question about whether states were precluded from suig under the tax anti injunction act which I believe came from the 6th circuit decission and could give them a vehicle to punt with.

Here is a comprehensive list of the questions on which the Court granted certiorari this morning:

On severability (90 minutes of argument):

1(a). (From NFIB v. Sebelius) "The question presented is whether the ACA must be invalidated in its entirety because it is nonseverable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution."

1(b). (Question 3 from Florida v. HHS) "[T]o what extent (if any) can the mandate be severed from the remainder of the Act?"

On the constitutionality of the minimum coverage provision (2 hours of argument):

2. (From HHS v. Florida) "Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision."

On the Anti-Injunction Act (1 hour of argument):

3. (Added by the Court in its order this morning) "Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act, 26 U.S.C. §7421(a)."


On the constitutionality of the ACA's Medicaid amendments (1 hour of argument):


4. (Question 1 from Florida v. HHS) "Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress‘s spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?"

aca litigation blog

they will punt.

 

[Conservative]

interesting side note...
Lawmakers, Broadcaster Request Camera In Courtroom For Health Care Hearing | Fox News

Republican Sen. Charles Grassley and House Democratic Leader Nancy Pelosi are joining C-SPAN's call to have cameras in the Supreme Court hearing room for the five-and-a-half hour arguments relating to the federal health care law.

Grassley, of Iowa, the ranking Republican on the Senate Judiciary Committee, wrote to Chief Justice John Roberts on Tuesday requesting that audio and video coverage be allowed in the landmark case.

"Cameras in federal courtrooms are at the very heart of an open and transparent government," he wrote. "Broadcasting the health care reform law proceedings would not only contribute to the public's understanding of America's judicial system, but provide an excellent educational opportunity on a case that has the potential to have a far-reaching impact on every American."

On Wednesday, Pelosi, of California, joined Grassley.

"When the Affordable Care Act is placed before the highest court in our country, all Americans will have a stake in the debate; therefore, all Americans should have access to it. Openness and transparency are essential to the success of our democracy, and in this historic debate, we must ensure the ability of our citizens to take part," she said in a statement.

more bipartisanship. Will this madness never end?

 

[JakeStarkey]

M14, the SCOTUS is not interested in your questions. The justices will be concerned only with the issue of Congress having the power to regulate an interstate commerical interest, insurance companies.

Maybe you should actually read the questions that were granted cert.

-That- would require intellectual honesty.

Intellectual honesty is neither of your suits, kiddos. SCOTUS will only be interested in the interstate commerce interess of Congress, nothing else. Roberts and one other conservative may well vote to uphold the act, making the final decision 6-3 or 7-2.