ObamaCare at the Court: A Guide to the Proceedings
Wednesday, March 28, 10:00 a.m. – The Court will hear 90 minutes of argument on the issue of severability: can any part of the ObamaCare Act survive if the Court were to strike down the individual insurance mandate or any other part of the law? Paul Clement will speak for the challengers.
Wednesday, March 28, 1:00 p.m. – The Court will hear a final hour of argument examining the constitutionality of ObamaCare’s expansion of the federal Medicaid program. Clement will again be center stage. The essence of the states’ challenge is that Congress exceeded its spending powers and violated basic principles of federalism because the Medicaid expansion coerces states into accepting onerous and costly new conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program. The amount of money at issue for the states is enormous and a previously voluntary program for the poor is being made mandatory.
As always, the sessions will not be televised. However, the Court has promised to release the audio file of the oral arguments by 2:00 p.m. on Monday and Tuesday, and by 4:00 p.m. on Wednesday. And no, I don’t know how you can get a ticket to get in to hear the arguments other than by standing in line with everyone else for what will be the most important case decided by the Supreme Court since Brown v. Board of Education.
It will be a momentous week for the interests of liberty, freedom, and the preservation of a constitutional republic.
This is a circus organized by the supreme court to give us the notion that they really give a dam about this law and what it does to our liberty. I don’t care what they do. Most likely being a part of the power grabbing elites, the surpremes will continue to grab power. Apparently Roberts has gone soft headed now that he is crafting his legacy rather than actually reviewing the shredding of the US constitution. All I can say is that the man on the street knows in his heart that this is an ill fated law where the liberals used every dirty trick in the book to pass. It is the long sought goal to once again Control the citizenry and ram another unjust series of regulations down our throats under the guise of helping us. If this is not reversed we are one step closer to another revolution by the citizens of this tyranical over reaching government and I say God help us but these bastards in the congress will be repaid for their treachery at the ballot box and we will rip this legislation and it’s supporters out by the roots.
I believe the court will deem the mandate as unconstitutional, because it clearly is. Unfortunately, they will also deem it to be sever-able even though there is no sever-ability clause in the law as written. If the majority of the court were actually interested in the constitutionality of this case then they would find the mandate unconstitutional and non-sever-able because of the way it was written. That would essentially kill the law outright.
PS: I know a Tommy Gunn who lives in TX and sells motorcycles.
“The essence of the states’ challenge is that Congress exceeded its spending powers and violated basic principles of federalism because the Medicaid expansion coerces states into accepting onerous and costly new conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program.”
To me, this is the heart of it. True, the mandate should be unconstitutional because it forces an individual to buy a product. But if Obamacare is passed, then Federalism will be dead. The states will no longer have any power over its own people and the Federal Governement will be able to tell them what to do and how to do it. In short, there will almost be no need for a State Government because the Federal Government will be able to run every aspect of your life. So if the states want to give up all of their powers, then they should support Obamacare. Maybe that’s why so many states are fighting this law in court. They still want at least some control over their own citizens.
Federalism’s been dead since the 17th Amendment passed in 1913. The body has just assumed room temperature.
What remains of states rights are one of the few bastions left and even these rights are slowly evaporating, education, protection of borders, etc. under the iron hand of the Central Planning Federal Government. No other country has states/entities with the power to resist the central planners as did/do our states. As far as I know the states and in particular Texas still have the right to secede. This is seen as a joke by most, but at some point with the constant instrusion upon on our freedom and rights I suspect that it is inevitable that it will be tested.
The most interesting argument to me revolves around the coercion and duress aspect of the law. It is a black letter concept of contract law that contracts must be entered into by willing parties. Obama care creates shotgun marriages for both individuals and insurance companies. I will be interested to see if the Justices pick up on this. An amicus brief has been filed arguing the law violates this basic tennet of contractual creation.
I am less certain of the unconstitutionality of the mandate to purchase. Wickard v Filburn in 1942 wiped away most limiting aspects of the Commerce Clause vis a vis Congressional power to regulate interstate economic relations, a ridiculous decision if the Court has ever made one. The Founders would be absolutely appaled at the logic.
The fact that we are subjected to this abomination is a testament to the power elite Marxists have in our society. Let’s trust that the Court still has some understanding of liberty and the limited role the Federal government is supposed to be playing.
If the statute is struck down, it will be one of the happiest days of my life. I want to see how all the little Marxists in Congress handle the set back. I can’t wait to see how his majesty deals with a ruling against him. Let’s hope the Supremes love liberty.
Excellent point. So much of the coverage of this issue has focused on the Commerce Clause, which is the Dems’ justification. I wonder what other aspects of constitutional law, such as the contracts issue you raise, might be brought to bear. For example, Obama are levies a penalty for breathing – never before has there been a charge for existing. Then there is the recent birth control mandate, a direct affront to thr First Amendment. Even if Obama are is overturned, it is troubling that some on the left have such deep disrespect for our freedoms.
Kermudjin,
Coercion and duress are pure contract issues, they are only tangentially constitutional, as the document does recognize contractual principals. It is one of the things I find so appealing about the C and D approach, it gets around all the hocus pocus nebulous constitutional murk and goes right to clear cut legal maxim. When I read the stories about the Amicus brief, my instant reaction was “Goodness, why didn’t I think of that?!” It is so apparent when you consider the forced nature of the required transaction.
Your point about lack of respect is a good one. Elitists who can’t fit into the free market and free enterprise nature of the society created by the founders, reach for the personally conducted tour through life angle so they can somehow be relevant and have a feeling of control. Tom Sowell believes this and I think he is right on the money in explaining how these rejects rationalize their command society.
I am not a lawyer, praise be, but Filburn was stopped from planting excess wheat. At least Filburn had the alternative of growing corn, milo, oats, and a host of other crops.
We,the lowly citizens of America, will be forced/coerced into buying something many do not want with absolutely NO alternative as the Federal government will hold the monopoly on health coverage. And as in the Filburn case we will be fined if we don’t do as we are told. That is certainly not free market commerce, but more like collectivist planned commerce. I realize in the fuzzy world of politics and law this may not matter a twit, but thought I’d mention it.
They seem the same, but very different IMHO, being just a citizen and all.
The big difference in the growing wheat and growing marijuana cases and Obamacare is that in the previous two examples, the defendants were prevented from engaging in an activity. In Obamacare, people will be forced to engage in an activity.
Liberal Justices have tried to use the Commerce Clause to justify so much federal activity. Basically, they use a “the toe bone is connected to the head bone” logic to show that everything has an impact on commerce and then – wham, bam – they say government has the right to do it. You can connect everything to commerce, so in that light Obamacare pretty clearly impacts commerce. So, it seems the argument against Obamacare is going to have to come from 1) there must be some restriction on the Commerce Clause, else the rest of the Constitution is meaningless (some Justices know this), or 2) some conflict between the Commerce Clause and other portions of the law.
I don’t think the Medicaid coercion issue is trivial. Justices in the past have acknowledged that such coercion is wrong, but they haven’t found an instance when it occurred. If there ever was one, this is it. If they don’t find coercion here, then federalism is dead.
Larsky,
Give yourself some serious credit. Wickard is just so logical and clever, but it is irrational when you grasp the intent of Madison, Franklin, Gouvernor Morris and the others who attended the convention in Philadelphia. The main battle that summer revolved around how to limit power, while solving the problems that the Articles of Confederation created. Wickard and its progeny(and many of its ancestors, come to think of it)eats out the heart of a limited and defined federal role. The justices who decided it prove the adage that it takes a very educated man to believe certain things.
The 9 of them of them ought to be ashamed of themselves.
The only originalist on the court is Thomas. I would be endlessly pleased if he wrote the opinion for the majority, it would be very, very sweet. I admire his disciplined mind and his understanding of what our founders intended.
It is very ominous that little o allowed this case to be fast tracked to the Supreme Court during an election year. I fear we are all in for a very unpleasant June Surprise.
The decision will be a water shed moment. If liberty prevails, our nation may begin the long march back from the corrosive effects of Marx and the progressives. If liberty fails, then I fear there may be some very profound consequences for our society and some unpleasant events. The American people do not like this law and opinion is hardening against it. There will be a fearsome reaction at the ballot box this fall.
Already, the very fact that the Supremes are hearing this case (and are likely to hand down a ruling in June) came at a bad time for the Dems.
We’re at the 2 year anniversary since ObamaCare was signed into law. The Dems were hoping to roll out a whole campaign which touts what they consider to be the good parts of ObamaCare (guaranteed issue, community rating, etc.), while soft-pedaling the parts they know are controversial or unpopular (like the mandate).
Instead, this Supreme Court case focuses the public’s attention back on the mandate, reminding them of why they never liked ObamaCare before.
Apparently Obama thinks Kagan has enough tricks up her sleeve to pull this off. If I were one of the conservative SC justices, I would have a battalion of bodyguards surrounding me. Visions of The Pelican Brief and other legal thrillers I’ve read dance through my head. Something smells rotten.
“If there is one single moment in history that marks the difference between free and slave, between citizen and subject…”
Well by the grace of God and our Liberty that moment is not the domain of 9 injustices! It is not theirs, nor never has been. It be ours!
Just as it is not ours to restore the power of the Constitution. It is ours to show them the wrath of America without the protections the Constitution offers them.
Let them restore it to find refuge from us.
They are the ones who are the direct enablers of tyranny over constitution. It is they who are the sworn guardians, the last line of defense of the sovereign power of the will of the people. If they sell us out on this, as I believe has been the plan all along, everything changes. This will be a unprecedented lawlessness act, an act of ultimate treason. It will be representative of not representative government, but representative of the truth that we the people only matter as long as we are useful tools of an elite ruling class.
I say, go right ahead, cross that Rubicon you 9 corrupt Bastards. It will tell the unvarnished truth. Truth that there will no longer be any doubt as to what government we do not have.
There will be no question what we have been served with.
Full blown unmitigated in your face Tyranny.
MT,
I have made a study of the Founders and the organic events associated with the Convention of 1787 and ratification. I recognize that we are far afield from the framers intent and that the Supreme Court has usurped authority. Your concerns are real.
I am cautiously optimistic that the Court is cognizant of the stakes here. I also believe that Thomas, the only originalist on the court, will have an opportunity to help move the argument back towards the Founders. I also am interested to see what influence black letter contract law has on the justices. I think the coercion issue might pull a liberal member towards the side of finding against constitutionality.
I agree with your sentiment that we are stareing tyranny in the eye and it is reaching out to put its hand around us. Everything changes if the mandate is not struck down. There will be a fire storm and things could get very interesting in November.
…the Medicaid expansion coerces states into accepting onerous and costly new conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program. The amount of money at issue for the states is enormous and a previously voluntary program for the poor is being made mandatory.
The essence of the federal funding phenomenon.
Opening the door to blackmail.
The acting Solicitor General just said rejecting Obamacare would be “grave and profound”. (gee, there’s an unbiased opinion)
The former Solicitor General, Elena Kagan, was ecstatic when the thing was jammed through.
From my aerie, I don’t see the relationship to precedents claimed, in substance or kind.
There are far bigger things at stake here than little, tiny points of law.
What is both frightening and so obvious that it is difficult to fathom in its enormity is that since this law was passed, the news commentators have analyzed its outcome as 5-4, conservative-liberal split. If that is true, that the outcome is predetermined before the trial. If the outcome is predetermined then the justice system is no longer viable.
Even the potential swing vote of Kennedy is only for drama. The commentators may take pride in their analytics, and the justices may take their pride of reason, not in the constitution, but in the promotion of their idealogic affiliations. There is need for judicial reform beginning with a more accessable impeachment process. How can SCOTUS be the law and be above the law?
Good summary of the SCOTUS review of the health reform law. We’ve put this into a visual format, in an infographic here:
http://ohpcenter.org/writings-handouts.php
Please why must the basic rules need always change, this will affect someone else every time the Constitution was not made to oppress some while feeding others needs.
When civil disobedience by several million people meets the IRS as it morphs to its ultimate police action form, as it must, then there will be blood and it will be joined by millions more. The government of the United States has become a mob of ruthless, corrupt and devious radicals in masquerade often, but more and more naked in their ascent to totalitarian power. Obamacare is the catalyst for revolution. As the cost of living becomes impossible to keep pace from debasement of the currency, as the radicals push a racial war, as every agency in all governments from federal to local turns to predator against its productive citizens, as they must and are to survive, then there will be blood. Obamacare is the catalyst for revolution. It will not be struck down, it will not be stopped, and there will be blood. Liberty as understood by most citizens is a check from the government. Chaos and revolution, race wars and insurrection, these will bring a massive police action and the vast majority will look to more government for sustenance and order – only until the government can no longer provide – and that tipping point will come quickly. Obamacare is only the first catalyst, the first real sting of tyranny and there will be blood. The government has by its mass and density and the momentum of all its acts set the stage for its undoing. Whispered everywhere, talked about increasingly in the open – revolution – there is something deeply wrong and corrupt at the very core. Gradually, then suddenly, it is upon us.
I sincerely hope that the “liberal” (i.e. subversive) Judges will understand that if they give to the Government the power to do ANYTHING, that power will exist even when a strongly conservative majority had a complete control of the Congress and of the White House. In the future, they could really regret a “political” vote on the Obamacare today.
Great post and great insight, in their zeal for the now most progressives do not consider the unintended consequences, so they try to bend the facts or LAW (which a law or rule is).
I believe though that most of those hearing this case will do the right thing, it is only a matter of time for us to see!
I heard the Kagen recused herself from this matter and I hope this is true, at least she still has some amount of decency but as far as the rest of her views not so much!
Here’s to a pleasant outcome to this horrid law and the real integrity of our Supreme Court, may God forgive us for some of the actions of our oppressors in Congress. it is not our will that they have done what they did and I am sure God is aware of it!
It is disappointing to see what is happening to medicine. The top down ( one-size fit all) approach to medicine of Obama care will not make us healthier or wealthier. It will make us poorer. The absolute power grab accruing to the political forces in DC is disconcerting.
In the 19th century, we had plenty of banking panics and crises, but we didn’t expand the welfare state because everyone knew you were free to go West, homestead, and improve your prospects. Healthcare on the frontier, however, was pretty scarce. Whatever the Supreme Court decides, I don’t think the problem will go away. We do need to solve the problem of helping those who face financial ruin when medical catastrophe decends upon them. Unfortunately, the Federal impulse to help this problem is forcing financial ruin upon all of us.
Also, Obamacare was so shoved down our throats politically that if the Court decides in Obamacare’s favor on the issue, the issue, like abortion, will not go away. It will continue to fester. Hopefully, the Court will make a nudge in favor of liberty. But if it does, we still need to solve the problem of finding a more workable healthcare solution.
I hold out some hope, SCOTUS has ruled against the Gov’t several times recently.
Sackett V EPA – a 9-0 decision for the homeowner. As in, even the libtards were against the EPA.
Housanna ELC V EEOC – a 9-0 decision for the Church School.
WalMart & Corporate Campaign donations both went against the fold also.
Although it isn’t part of the case, but the recent HHS decision to require churches to offer ‘contraception’ looks like a future case. If the supremes have actually sat down and read this horribly written law (not withstanding the prime aspects) they may just want to void the whole thing.
A well written law that is popular but pushes the boundary of precedent has been given a pass previously, but an unpopular badly written law will be look at more critically.
We Catholics will never submit to this law, no matter what the Court decides. I will be happy to go to prison if the need should arise.
You may not get the opportunity. They may simply grant themselves the power to garnish bank accounts. Don’t think it can happen? They’ve had that power in cases of child support for decades.
States utilize the garnishments. The Feds take it from Federal Income Tax refunds.
Obama’s Little Mind
“A foolish consistency is the hobgoblin of little minds.” (Ralph Waldo Emerson)
As the Supreme Court prepares to hear arguments on the constitutionality of Obamacare, it’s fitting to consider the quality of the mind of the person who proposed and foisted that abominable legislation on the American people.
Before, during, and following the last presidential campaign, Barack Hussein Obama was presented to the American people and the planet as a scholarly, articulate, and charismatic savior who would masterfully lead and transform the nation and restore respect for America in the collective eyes of the rest of the world.
During his relatively brief tenure as the most powerful man in the universe, the president has indeed transformed the United States, although his version of change hasn’t been what most Americans expected.
Obama has transformed the economy into a virtual basket case, has created deficits and national debts which our children and grandchildren will be repaying throughout their lives, has been a simpering apologist for America’s exceptionalism, and has turned America into an international joke.
If upheld by SCOTUS, the Affordable Health Care for America Act will simply be the capstone of Obama’s socialistic policies, if not the gravestone for America’s economic viability.
And, all because Obama was misrepresented as a brilliant mind, a “constitutional scholar,” who would lead the country into the future while he leads us into Third World oblivion and ignores the Constitution.
Those millions of voters who saw through the charlatan candidate and resisted the urge to vote for him out of a sense of black pride or misplaced white guilt knew all along he was absurdly unqualified and inexperienced to serve as chief executive and commander-in-chief. We were more amazed that more foreigners seemed to be taken in by him than the 69,456,897 who cast their ballots for him in 2008.
Barack Obama may yet be re-elected in November by the same sheeple who fell for his empty promises of change last time around but many foreigners have long since seen through his vacuousness, have noticed the gaffe-prone “scholar” is even dumber than George W. Bush was reputed to be, and have come to the realization that, absent his trusty teleprompters, Obama is a braindead dolt who can only repeat hollow words and phrases.
Thomas Buch-Andersen, host of the Danish TV show Detektor, is one European who dared to buck the conventional wisdom that Obama can think on his own, devoid of scripted inanities dictated by his handlers
Buch-Anderson recently pointed out that Obama consistently uses the same trite, meaningless terminology when speaking to leaders of every ally who visits the White House. . . (Read more at http://www.genelalor.com/blog1/?p=19101.)
When the concept of freedom as designed for the American Republic hangs in literal balance on the outcome of decisions of 9 people, of which at least 4 are politically aligned with the concept of the health bill, it is obvious that there is a crisis in the country. In fact, we know that if there was 1 additional clearly liberal judge sitting on the court, the outcome would likely be predetermined. Our crisis is elemental in the nature of humans. That is, over time, even a system as intelligently designed as the Constitution devolves into the reality of the weaknesses of human interpretation.
The American people are the cause and the recipients of the decline in the freedom that was unique to us in its original design. An unknown number of voters still support the perpetrators and the essence of this legislative assault on the remains of our liberty. Hopefully, that number is not a majority. In November, we will know.
The first day of hearings has concluded. Apparently, all parties agree that the individual mandate fee is not a tax, it is a fine. This may be fairly significant. When they were selling Obamacare, we were told repeatedly that the fee for not having insurance was a fine, not a tax. When Obamacare was challenged, they argued that the fee was, in fact, a tax and that the government has the right to tax. Now it seems it is a fine. This may bring other issues to bear, such as due process and the notion that citizens will be fined for just breathing – that would be a groundbreaking precedent. This could be good news…
Another reason to use the name I invented some days ago:
“psychototalitarians”.
Some liberals, like Jonathan Cohn (New Republic), are now openly admitting they don’t have a problem with this in general:
“Can the government … draw a line that justifies the mandate but still provides some constraints on federal action?
“Actually, it more or less has, although I’m not quite sure it’s put it that way: Government may regulate what the plaintiffs call ‘inactivity’ when it is merely a prelude to an inevitable activity that government has the right to regulate. Since getting sick and consuming medical services is inevitable, and since even (most of) the law’s critics acknowledge the government can regulate the way sick people pay for their medical care, the mandate is acceptable.
“….Congress could, for example, force everybody to obtain food vouchers, join a grocery club, or demonstrate they had plans for paying for their food—paying some sort of fine if they did not. And Congress might be able to pass a law requiring everybody to get a car, obtain a transit pass, or, again, pay a fee to offset the costs of future transportation.
“These would be constitutional because everybody really does need to eat—and everybody, or almost everybody, has to get places from time to time. Of course, such laws would also be really stupid. Congress can, presumably, find better ways of preventing hunger and providing adequate transportation. But, as Justice Elana Kagan noted at her confirmation hearings, the constitution doesn’t prohibit stupid laws—only ones that violate liberty.”
http://tinyurl.com/7b9q52e
It will be for the Supremes to decide if Cohn is right constitutionally.
But Cohn’s argument would be disastrous for the Dems politically. You can just see the GOP ads: “Democrats say the Federal Government can force you to join Sam’s Club….”
Thanks for that, but I’m pretty skeptical of liberal weasel words. It seems to me the word “force” pretty much means “violate liberty”.
The question that brings me cause to pause, and perhaps Mr. Von Spakovsky can answer, is why, with the plethora of attorneys available to the Justice Department, did the court see fit to appoint a private attorney to argue the case for the federal government? And not just any attorney, but one from Eric Holder’s former law firm and the same law firm that represented, pro bono, the Chinese Ughers who were released from Gitmo and deposited on an island compliments of the taxpayer and who continues to represent, pro bono, a number of Muslim Gitmo detainees?
Did the Court feel that there was not one attorney in the federal Justice System that was qualified to argue on behalf of the government?
It’s my understanding that the administration’s position is that the fee is not a tax, hence they would offer no attorney to argue the opposite. Those challenging the laws hold the same position. So, the court needed to appoint someone to represent the opposing view.
For those of you interested in enjoying a bit of high legal art, you can listen right now to audio of the oral arguments at the supreme court in this case by following the link below:
http://www.supremecourt.gov/oral_arguments/argument_audio.aspx
Once you’re on the above-linked page, click on “Department of Health and Human Servs. v. Florida” and listen or download as your heart desires and devices permit.
Sure, the oral argument will probably be Greek to you if you’re not a lawyer, but how often does one get to witness history as it’s happening? And for those of you who are praying for Obamacare’s demise, get busy.
Ayn Rand – Liberty vs Socialism
http://www.youtube.com/watch?v=s1RxKW-P5V8
Elk Grove considers banning smoking at apartment complexes Sacramento Business Journal by Michael Shaw, Staff Writer Date: Thursday, March 22, 2012
http://www.bizjournals.com/sacramento/news/2012/03/22/elk-grove-smoke-ban-apartment-buildings.html
According to a report in the Daily Rash, on Friday Obama and Biden celebrated Obama Care’s two year anniversary with homemade cupcakes. http://www.thedailyrash.com/obama-and-biden-celebrate-health-care-anniversary-with-cupcakes
The Supreme Court has been ruling unconstitutional law constitutional for the last 150 years or so, so I’m not holding my breath on this issue.
You are so right. Believers in our Constitution are depicted as fools who are too antiquated to “progress” away from the most important document in the history of Man.
Supreme Court -Et tu,Brute?
We are headed for war. The a*sholes who have taken over our government while we’ve been sleeping–or more accurately while we’ve been working and carrying the permanently unemployed on our backs–will not relinquish the power they’ve seized. I can think of no moment in history when an evil dictator peacefully abdicated power.
I thought Kagan was to recuse herself from these deliberations?
Semper Fi’
DM
Kagan recuse herself from the very case she was inserted into the SC to judge? Ha! That would be like Obama honoring his Oath to preserve, protect, and defend the Constitution of the United States. When pigs fly and Dems don’t lie.
Justice Sonia Sotomayor should excuse herself from this decision because she was peripherally involved in crafting Obamacare.
Nevertheless, I predict a 5-4 decision that will make the mandatory purchase of insurance illegal.
I’ll right away seize your rss feed as I can’t in finding your email subscription link or newsletter service. Do you have any? Please let me know in order that I may just subscribe. Thanks.