The ObamaCare Arguments – The First Day
It triggered a law school flashback. Once again, I was in my least favorite class, federal tax law, listening to a discussion so arcane and bureaucratic that it was hard to stay awake.
I speak, of course, of today’s 90 minutes of argument before the Supreme Court. At issue: whether the Anti-Injunction Act (AIA) bars the court from considering this challenge to ObamaCare until the plaintiffs have actually been forced to buy insurance or pay a penalty for not doing so.
Don’t get me wrong. The lawyers did a good job presenting their particular sides of the arguments. But it was very clear from almost the beginning that none of the justices are inclined to use the AIA as an excuse for not tackling the substantive issues at stake in this case.
Even the liberal justices were having trouble with the position advanced by Robert Long, the private attorney appointed by the justices to argue that the AIA bars the suit. The AIA prevents prospective lawsuits from being filed before a tax has been assessed or paid. As Long appropriately put it, the AIA is a “pay first, litigate later” rule. But neither Congress nor the president had given Long much to work with in making his arguments since they consistently referred to the penalty an individual has to pay if he fails to buy a health insurance policy, not a tax. Only if the Supreme Court decides that the punishment is a tax will the AIA bar the lawsuit.
As Justice Breyer pointed out to Long, however, Congress had “nowhere used the word ‘tax.’ What it says is penalty.” As Justice Ginsburg, who many people classify as the most liberal member of the Court, said, the penalty was intended to make people buy health insurance to avoid paying a fine to the government. A similar federal law modeled on the AIA “does not apply to penalties that are designed to induce compliance with the law, rather than raise revenue.” According to Ginsburg, the penalty in the ObamaCare law “is not a revenue-raising measure because, if it’s successful, … nobody will pay the penalty, and there will be no revenue to raise.” Justice Sotomayor joined in, saying, “Here we have one where the Congress is not denominating it as a tax; it’s denominating it as a penalty.”
The solicitor general, Donald Verrilli, Jr., opened his argument by telling the Court that “this case presents issues of great moment, and the Anti-Injunction Act does not bar the Court’s consideration of those issues.” The whole reason a private attorney had been appointed by the Court was because the Justice Department had changed its position on whether the punishment for not complying with the individual mandate was a penalty or a tax — first claiming it was a tax, then claiming it was a penalty, and now claiming it was both. As Justice Sotomayor noted, “They [the government] raised it and then gave it up.” Greg Katsas, on behalf of the challengers, answered that by agreeing that not only was the government “not pursuing it here, they are affirmatively pursuing an argument on the other side.”
In fact, the government is taking two completely contradictory positions in this case. As Justice Alito pointed out, it is trying to call the penalty a penalty for one purpose but a tax for another purpose:
General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back, and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?
Verrilli was forced to admit that the answer was “no.” But then, this contradictory position is par for the course when you look at how the government has been defending this litigation, changing its position on issues such as this and going from trying to initially delay court decisions to then trying to speed up consideration.
Much more on Tuesday, where the attorneys will get down to arguing the constitutionality of the individual mandate itself, which is the center core of the law.
There can never be a complete dependency on government (marxist/communist) until private options have been eliminated. It is therefore only logical to conclude that the Supremes will give Obamacare a pass.
In an exchange with a plaintiffs attorney, Roberts suggested he’s skeptical that the mandate and its penalties can be treated separately and may have opened the door to finding that Congress’ power to impose the mandate springs from its broad taxing power.
“The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense,” Roberts said, over strong objections from attorney Gregory Katsas. “It’s a command. A mandate is a command. If there is nothing behind the command, it’s sort of, well what happens if you don’t file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime. … Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.”
This is the last thing opponents of the ACA wanted to hear, and from Roberts of all people. I’m going to go out on a limb and say that the decision will come down to a 7-2, with Thomas and Alito going against, and everyone else ruling it constitutional.
Hans, you are now my favorite, designate court reporter and clarifier. Keep up the good work and thank you. My business and entire industry depends on this court ruling. The other articles already read about this momumental case are mush.
Holy cow…it’s so amazingly dishonest that “Justices” like Ginsburg and Sotomayor pretend to raise a a sincere eyebrow concerning the dishonesty of Obamacare. Such “Justices” are rubber stamp fools. They will side with the Administration come hell or high water. Ginsburg, that fool of a judge, recently went on record stating that if she had to draft a constitution today, she would not look to our US Constitution. It’s just so “out of date”, she tells us. Instead, she would look to “proactive” constitutions, such as is found in South Africa. You see, the brilliant framers of the new South African constitution (many who are admitted Marxists) were smart enough to ensure real “rights”, like the “right’ to “free government provided health care”. Jokers, fools, all of them. No, actually dangerous fools who don’t respect the brilliance of the Founders, nor their roles as judges, not politicians or legislators. Let’s pray the at least 5 justices summon the hueavos to do what is right here.
Watching C-Span last night, Clements argued that the Anti-Injunction Act didn’t apply here because 26 STATES sued to void the law. States don’t get taxed, individuals do. I assume states have standing in federal courst against each other and/or the federal government – I think it is in the plain words in the Constitution.
Wonder if the SCOTUS ever read that musty old parchment?
I second the compliments re von Spakovsky’s reportage.
Agreed. What we saw today was Kabuki theatre.
If we get five people like Ginsberg on the Supreme Court (and this may well happen if Obama is reelected) then we won’t have to worry about what Congress or the President does. The Supreme Court will simply rule that the Constitution mandates that the federal government provide “free” healthcare to all. End of story.
You think that sounds far-fetched? It’s not any more so than the court discovering a constitutional right to an abortion lurking in the Constitutions penumbras and emanations.
One would hope that the train of abuses would then be long enough.
All other things being equal, the Supreme Court decides issues in such a way as to increase its power. Hence, expect a decision saying that Obamacare is “almost” constitutional or “just barely” unconstitutional and could be fixed if Congress votes again and, again, presents their revised Obamacare product for the Supreme Court to review.
I can think of 146 reasons why the 150 page south african constitution is inferior to the 4 page US constitution.
“In fact, the government is taking two completely contradictory positions in this case. As Justice Alito pointed out, it is trying to call the penalty a penalty for one purpose but a tax for another purpose.”
Let’s call it “Schrodinger’s tax”!
Well said. This may be a tax.
No, that’s not Schrodinger’s tax. Schrodinger’s tax is a tax and not a tax at the same time, not a maybe tax.
I believe it would only be a tax once it was paid. Until then no one could be sure if it was a tax or not.
I don’t know about y’all, but I’m finding this all very taxing…
Obamacare: Bending The Hiring Curve Down July 23, 2011 http://www.investors.com/NewsAndAnalysis/Article/579221/201107221832/Bending-The-Hiring-Curve-Down.htm
“As Justice Alito pointed out, it is trying to call the penalty a penalty for one purpose but a tax for another purpose”
Aren’t all taxes penalties?
Justice Ginsburg’s hopeful comment speaks volumes about real world vs intended effects of the legislation. She notes that if the incentive created by the so-called penalty is successful, there will never be a penalty paid and hence no revenue raised. However, the reality is that there will be those who choose to pay the penalty and not purchase the insurance due to the dramatic price differential between the policy and the penalty. SO revenue will certainly be raised.
Add my appreciation for Mr. von Spakovsky’s clarity.
I think the government is throwing things at the wall in hopes that something sticks.
And the justices aren’t biting.
If through legal sophistry and political rationalization, the SCOTUS decides in favor of this abomination, then it will be the most definitive, unequivocal signal yet that the entire government is illegitimate. What will you do? Will you finally wake up? Will you still decide to cower in fear, and do nothing?
What I think will be very entertaining is when this is likely upheld, and the conservatives angrily call the supreme court “activist judges”. Activist judges for doing nothing instead of taking action for conservative causes. Anyway, it’s only day one, so I’m not jumping the gun here. Two more days of fun!
Oh, come on, you can make a better straw man than that!
Never underestimate the frantic panic of a Liberal who sees his creation crumbling in the harsh light of Reality.
I expect the mandate to be rejected as unconstitutional, but a frantic grab for meaning to happen among the 5 most liberal justices that can be summarized as “But the rest is fine! Just fine! Leave it alone!”
I’m taking note of your name and comment. Hope to see you back here in June. I’d stock up on your blood pressure medication prescription, I’m guessing you’re gonna need it. Kennedy, it’s all about Kennedy. Roberts will do what Kennedy does, just watch. If the mandate is unconstitutional then so isn’t Social Security and Medicare, both of which have different mandate mechanisms, but function in a similar fashion to achieve different things. SCOTUS isn’t going to go there. I know you would like them to but they won’t.
We will see. I still have the forlorn hope that the Supremes will stake this turkey out in the sun to dry, living in a country where the government can force me to purchase a private product “for my own good” is more than a bit frightening. If this is upheld, can I be forced to buy a Volt? Broccoli? Adopt a kitten? Stop eating butter on my popcorn? Yuck!
Maybe they do want to go there.
Perhaps they want out of a pending $200 Trillion future liability.
Now that they’ve stolen all our savings, why should they want to pay it back?
Democrats. You gotta love em, right?
…hey, where’s my rifle, old shiny.
You’re too shiny, that’s what I say…
Regardless of how the court rules on the health care bill, it is becoming clear that the wheels on the nation’s wagon are getting wobbly. Even if this bill is ruled unacceptable, our fiscal condition is moving into crisis and our economy is in structural decline, along with the national integrity. This is a condition brought about by the will of the people. If an adequate majority of the people wanted to remove this bill, we could do so at the voting booth. That is where the bill originated, as a projection of the politicians that were considered preferable. And, we can fix Social Security and other problems that are creating decline. But, the will to fix the excesses are not yet present with the people.
Does anyone really believe that we will be able to teach, argue, discuss, and compromise liberalism out of the approximately 45% who still “approve” of Obama and his handling of our affairs? Or, that we will be able to turn the nation onto a better path as long as so many have strong liberal views? Liberalism is like alcoholism–the afflicted must hit bottom to get better. And, Liberalism is very advanced in our society.
Eventually, reality will convince the collectivists that taxing and spending does not equal production; but, not anytime soon. “Hope and Change” have a way to go–about as long as it takes for the money and credit to run out. But, we are getting there faster and faster.
Check out this great video, by a college professor of all people, and tell me how the government is going to afford Obamacare anyway:
http://www.zerohedge.com/news/simple-problems-too-much-us-debt
Back in the good ol’ days supreme court justices could be removed for cause. Such as getting drunk and cursing.
And would someone please point out to me the phrase ‘lifetime appointment’ in the US Constitution referring to justices of the supreme court? I can’t find it.
Probably because it aint there.
Personally, I don’t think it is good behavior that one justice is passing judgment on a case that she help craft. Or one justice telling the world that our Constitution is not the best for other nations to follow.
Thanks for the insights. It was my impression that the first day of arguments were non-trivial; AIA may not be central but the tax vs. fine issue is important. It is nice to see the liberal Justices struggle with it. Perhaps they will have one less argument supporting the federal power grab My optimism is tempered by the fact that they can still reach a decision favoring Obamacare – the logic in cases like Roe, Wickard, and Kelo tells us that they can get just about anywhere they want to.
Over at CNS news another issue was mentioned – maybe not pertinent to constitutionality but an interesting hole in Obamacare. People of low income who are not subject to the individual mandate fine and who would be eligible for Medicaid can’t be compelled to sign up for Medicaid; they won’t pay a fine, they won’t be insured, and they won’t be on Medicaid. There are already Medicaid-eligible people who don’t sign up, for whatever reason. Thus the mandate that is intended to compel insurance coverage doesn’t work entirely. Oops.
It looks like a bad start for Obamacare. Any argument that the mandate and penalty is a tax rather than a mandate and penalty got shot down pretty badly today. I doubt the giv will be able to get away with calling it a tax tomorrow, since even the leftist judges were skeptical of that argument today.
Justice Alito: Couldn’t the Government Mandate Your Burial Services? Mar 27, 2012
http://www.youtube.com/watch?v=Fid9oqjAvkc&feature=player_embedded
As if law school wasn’t stressful enough, soon you will have to think about finding a job. I work with JD Match, where they make finding the AmLaw firm that’s right for you – and better yet – the firm that’s looking to hire someone with your qualifications – easier. Check out JD Match, learn about their sophisticated matching algorithm and sign up for a free membership today. A few minutes of your time could get you on the path to real experience. http://bit.ly/GYzS2m