The hatful of lawsuits challenging ObamaCare are likely to be heard before the Supreme Court of the United States during this session. All of the cases ask the Court to rule on whether the Commerce Clause of the Constitution allows Congress only to regulate commerce that is being committed, or if Congress can command commerce to be committed – the individual mandate question. US District Courts of Appeal have ruled both ways on this, so the Supreme Court is almost certain to grant certiorari on this aspect of ObamaCare.
This vital to the whole of ObamaCare, since without the individual mandate, forcing insurers to underwrite pre-existing conditions and removing caps on lifetime care will bankrupt the industry. Put simply, if the mandates can’t be enforced, the whole healthcare overhaul collapses.
There are also wider implications, because if Congress can construe the oversight of on-going commerce to include a mandate that every American commit commerce, there is no limit to what Congress can mandate. This is precisely the check on government power the Supreme Court was designed to perform. The 11th Circuit Court of Appeals found the individual mandate “breathtaking in its expansive scope … The government’s position amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point in their life. This theory affords no limiting principles in which to confine Congress’s enumerated power.”
The National Federation of Independent Businesses, and other litigants argue that if the mandate is struck down, the entire Affordable Care Act is invalid. One of the examples of the slap-dash nature of the way in which this law was “crafted” is the absence of a severance clause – a boilerplate of legislative language that all bills include which states that “if any portion of this law is overturned or repealed, the remainder remains in full force and effect.” No such clause was included anywhere in the 2,000+ pages of ObamaCare, meaning that invalidating any of it invalidates all of it. The Supreme Court may well overlook this case of stare decisis in order to avoid chaos in Congress – or it may hold to tradition (and settled law). This could go either way, even with a 5-4 rejection of the mandate (which is not assured in any event).
An inside-baseball aspect is the 4th Circuit’s ruling that it lacked jurisdiction because the Anti-Injunction Act prevents anyone standing to challenge a tax before actually paying (referring to the penalty for not buying health insurance, which is not yet in-force). Both Liberty University and the Solicitor General are asking the Court to rule on this, but both are asking the Court to find that the AIA doesn’t apply in this case. Neither wants the “penalty” to be considered a tax – Liberty Union because Congress has the enumerated right to levy taxes, and the government because the Democrats proclaimed loudly and often that this was in no way a tax.
The Court will undoubtedly discuss this aspect, but could take one of three courses: it could rule that AIA doesn’t apply here, moving on to the greater challenges of the mandate; it could find that AIA does, in fact, apply, telling Liberty Union to come back after 2014 (when the penalty will be in force); or, it could choose not to hear this case at all.
Then there’s the Virginia Law. Just before President Obama signed the Affordable Care Act, Virginia passed a law making it illegal for anyone to require a Virginia resident to buy insurance. The state is arguing this case as a state’s rights issue. The Court will likely not review this aspect, since, once a Virginian refuses to buy insurance under ObamaCare (in 2014), the case will get thrown out in pre-trial motions as the US attorney will invoke the superiority of federal law over state law in cases of conflict between the two.
The group of 26 states is, in addition to challenging the mandate, is asking the Court to invalidate ObamaCare’s expansion of Medicaid to all non-Medicare recipients at or below 133% of the federal poverty level (it is currently 100%), or leave Medicaid, as commandeering the states to enforce federal law at the states’ expense. This may not be heard, or forthrightly upheld – states have unsuccessfully tried to challenge various aspects of Medicaid in the past.
The 26 states are joined by Liberty University in asking the Court to throw out the Employer Mandate, which requires businesses with more than 50 full-time workers to provide health coverage or pay a fine. Litigants say this interferes with the employer-employee relationship, which is private and a contractual arrangement. There is precedent for the Court regulating this relationship, and they are unlikely to address this issue except in passing.
Right now, I’m guessing that SCOTUS will strike down the individual mandate as extraconstitutional; will not rule on the severance issue (thereby allowing the rest of ObamaCare to legally stand, if without half of its funding); will dismiss (in the opinion, if not in an actual ruling) the Virginia law; will uphold the Medicaid provision and will not address the employer mandate. That’s my call before hearing the oral arguments.