Last week, the Supreme Court began deliberations on the Affordable Care Act, also known as ObamaCare, which was passed in March 2010. It was probably the biggest case the Supreme Court has had in a very long time.The Supreme Court, composed of nine justices, heard oral arguments for and against the law and were able to challenge the lawyers. Justices Kagan, Sotomayor, Breyer, and Ginsburg make up the liberal wing of the court and asked the most questions of the lawyers arguing against the law, although the conservative justices also asked clarifying questions. Chief Justice Roberts and Justices Scalia, Alito, and Thomas are the more conservative justices, with Justice Kennedy being the swing vote.
But as Mark Levin put it, “there are no conservative justices. There are no liberal justices. There are the constitutionalists and there are the activists. In other words, there are the justices who know how to do their jobs and the justices who don’t.”
Let me put this into context first. The Affordable Care Act was passed by a Democrat Congress and signed into law by President Obama in March 2010. It effectively requires you to buy government health care whether you want to or not, or pay a fine. It makes it mandatory to purchase health care. I won’t go deep into the actual law right here, we already referenced a great video in one of our other articles.
Last Monday, March 26, the first day that the Supreme Court justices heard arguments on ObamaCare, they started by investigating an 1867 law called the Anti-Injunction Act which said that you can not challenge a tax until someone has paid it. But they agreed that the penalty for people who do not buy health care is indeed a penalty, since it did not say anything about it being a ‘tax’ in the actual law.
Solicitor General Donald Verrilli, who represented the Obama administration, said that “[t]hey called it a penalty. They didn’t give any other textual instruction in the Affordable Care Act or the Internal Revenue Code that that penalty should be treated as a tax for Anti-Injunction Act purposes.”
Justice Samuel Alito responded, “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.” He was referring to the fact that the next day, Verrilli would be arguing that it would be in Congress’s power to enact such a penalty because it is a tax.
The Supreme Court opened up the second day of arguments by turning to the individual mandate. The individual mandate is the obligation for all Americans to buy health insurance, or face paying a penalty.
The chief challenge to the mandate was raised by Paul Clement, the lawyer who represented Florida as well as 25 other states in this case (Dept. of Health and Human Services v. Florida). He said that if the government could force citizens to buy health care, is there any limit to what the government can force you to buy? Verrilli said that Congress has that power because the Commerce Clause of the Constitution states that Congress can regulate interstate commerce, and Congress can force people to buy a product in the name of regulating commerce.
But Clement made the point that Congress had never before forced individuals to buy a certain product. Verrilli broadly defined health care as a “market,” wherein every person will participate sooner or later, and therefore it would be wise to cover the person’s health care costs before an accident happened. But then Justice Antonin Scalia made this point:
Everybody has to buy food sooner or later. Therefore, everybody is in the market; therefore you can make people buy broccoli?
Justice Samuel Alito:
Isn’t that a very artificial way of talking about what somebody is doing? And if that’s true, why isn’t it equally artificial to say that somebody who is doing absolutely nothing about health care is financing health care services?
Justice Anthony Kennedy, a swing voter, expressed his concern over the law also.
“Can you create commerce in order to regulate it?” he asked General Verrilli. He also said that the federal government faced a “heavy burden of justification” and he wanted Verrilli to state “some limits on the commerce clause” of the Constitution. Kennedy said that the law is “changing the relationship of the individual to the government.” Mr. Clement said that it was “one thing to establish a bank, and another to force the citizenry to put all of their money in the bank.” Clement was comparing the latter to the individual mandate.
On Wednesday, the Supreme Court turned to severability – in other words, does it kill the entire law if the individual mandate is found unconstitutional?
Clement argued that without it, the law would be a “hollowed-out shell.” Chief Justice Roberts agreed. The four liberal justices – Kagan, Breyer, Ginsburg, and Sotomayor – argued for a “lighter touch on the law”. Ginsburg said that in choosing between “a wrecking operation and a salvage job, a more conservative approach would be a salvage job.” But Scalia said that it would be “totally unrealistic” for the Supreme Court – nine justices and a few clerks – to go through all 2,700 pages of the Affordable Care Act and weed out everything related to the mandate.
We will know the verdict this June.
Images source: courtartist.com