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Tuesday, March 27, 2012
Oyez! Oyez! Obamacare’s Day in Court
By Heritage Foundation @ 2:36 PM :: 5124 Views :: National News, Ethics

Oyez! Oyez! Obamacare’s Day in Court

www.Heritage.org

The Supreme Court is now hearing arguments in the case that will define our generation. Obamacare is having its day —make that days—in Court. With six hours of oral argument time over the course of three days, it’s easy to get lost in the plethora of legal issues.

Thankfully, Heritage’s Robert Alt and Edmund Haislmaier have created a guide to the issues before the Court, potential rulings, and their effects. The heart of the issue is whether Congress exceeded its constitutional authority by creating a requirement that every American buy a health insurance plan or pay a penalty. Heritage has long argued that the individual mandate is unprecedented and unconstitutional. But, that does not mean the Court will see it that way. The Court could rule in one of two ways on the individual mandate:

  1. Rubberstamp the individual mandate. Americans would be required to purchase and maintain government-approved health insurance. As a result, the federal government would enforce regulations that strip away Americans’ ability to make their own health care decisions. More importantly, Congress would be able to regulate virtually any aspect of American life. Congress could use its newfound power to turn any inactivity into a commercial activity that could be regulated. Congress already uses incentives to encourage consumers to purchase a particular product. If the individual mandate is constitutional, Congress could then require the purchases.
  2. Strike down the mandate as unconstitutional. What does that mean for the rest of the law? Is the mandate severable from the rest of the law?

The key question for Court will be: Can Obamacare operate as Congress intended without the individual mandate. There are three possibilities:

  1. Strike down the mandate but leave the rest of Obamacare free to run amok. Americans would no longer face a penalty for not buying health insurance, but the insurance market would face severe upheaval if other components of Obamacare were left in place. Even the Obama administration recognizes that other insurance provisions—including those for pre-existing conditions and guaranteed issue requirements—must be invalidated for the insurance market to survive.
  2. Strike down the mandate and a few “related” provisions in Obamacare. This scenario puts the justices in the awkward position of determining which sections of Obamacare are so intertwined with the mandate that they too must be struck down. Again, the insurance market would be in disarray—with a hodge-podge of regulations that inhibit competition and consumer choice. Congress would have to act to rectify immediate impacts.
  3. Strike down all of Obamacare. Cue the band and pop the champagne! Ever since the first lawsuit against Obamacare, conservatives have hoped and prayed that the Court would strike down the entire law. No more Obamacare tax increases, anti-conscience mandates, Independent Payment Advisory Board for Medicare, or unsustainable new entitlement programs. Plus, lawmakers get a second chance to create more patient-centered reforms that do not centralize health-care decision making in Washington. This is the best-case scenario.

Assuming the Court doesn’t strike down Obamacare in its entirety, there is another issue threatening America’s First Principles. Obamacare puts federalism at risk. Specifically at issue is whether the Medicaid expansion requirements in Obamacare—conditions made under threat of the federal government withholding all Medicaid funding from states that choose not to comply—coerce the states and violate the principle of federalism. The Medicaid expansion could be the sleeper issue of the Court hearings. The Court could reach two possible outcomes on this question:

  1. Allow Congress to force states to comply or lose all Medicaid funding. This would profoundly undermine state authority, making the states essentially tax collectors for a federal program. Nothing would deter Congress from expanding its reach further into state affairs and imposing similar changes on other programs that have shared federal and state funding.
  2. Strike down Medicaid-related requirements. Here, much depends on how the Court crafts its decision. A sweeping decision could lead to a healthy reexamination of the limitations on the federal government for state spending and taxes. But a narrow decision focusing only on Obamacare and Medicaid limits this decision’s effect on other federal-state programs.

Here’s the bottom line: We should not sit around waiting for the Supreme Court to save America from Obamacare. The Supreme Court could decide that part or all of the law is constitutional.
Regardless of what the Court decides, Congress still has responsibilities. If Congress thinks that Obamacare is unconstitutional, then it should
repeal the law and replace it with patient-centered, and market-based health system reforms. Let's not forget that a new executive could issue enough executive orders to halt the implementation of Obamacare. But what matters most is that we maintain “the vigilant and manly spirit…which nourishes freedom, and in return is nourished by it.” Without that spirit, freedom really is one generation—or one Supreme Court case—away from extinction.

More … Keep reading about Obamacare before the Court

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