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Three fast-paced days was all it took for nine justices to grill advocates arguing for and against the Affordable Care Act – better known as Obamacare.
A decision is expected in late June, just months before 2012 presidential elections.
Although it is notoriously difficult to predict U.S. Supreme Court decisions purely based on their questioning, here are my takeaways from these momentous three days.
DAY 1: Can the Court Rule on the Affordable Health Care
Act Right Now?
Once upon a time, there was a law passed in 1867. It was called the Anti-Injunction Act.
The Anti-Injunction Act prevents you from challenging a tax law until you've actually had to pay the tax.
The Anti-Injunction Act and the Affordable Health Care Act came together in Day 1 of oral arguments. The big question was this: Are the payments that we make for health insurance under the Affordable Health Care Act treated like tax revenue?
If the Court decides to treat the payments like tax revenue, then the Anti-Injunction Act prevents the Court from ruling on the rest of the lawsuit until health care laws actually go into effect in 2014.
There is no question in my mind that the Court will choose not to apply the Anti-Injunction Act. The Court wants to tackle health care reform head-on, continuing forward progress on the issue instead of hiding from it until a later date.
DAY 2: Is Obamacare Constitutional?
Congress has the power to regulate the markets of many things – cars, boats, drugs, and wheat, to name just a few. This power is derived from the Constitution; specifically, the part of the constitution called the Commerce Clause.
The Commerce Clause aims to eliminate rivalry between states. When a market is federally regulated, it levels the playing field between the states. It ensures that the flow of interstate commerce remains free from local restraints.
The Commerce Clause potentially applies to any markets that cross state lines – but what about something like the health care market?
Welcome to Day 2 arguments.
Day 2 centered on whether the federal government, via the Commerce Clause, has the power to make us buy into a government-mandated health insurance plan.
Put simply, is the Affordable Health Care Act constitutional?
The government argues that health care is certainly an interstate market. It is also a market that we all must enter into, by our own mortal nature. And because we all enter into it, we can be regulated by the federal government via the Affordable Health Care Act.
The petitioners, on the other hand, argue that although health care is an interstate market, we do not all enter into the health care market, and it is unconstitutional to compel individuals to do so. The Commerce Clause only gives Congress the power to regulate existing commerce, not to force people to enter commerce in the first place.
Justices Antonin Scalia and Samuel Alito hammered the government with some tough questions on this matter. But they are two predictably conservative judges, so it wasn't all that surprising.
What was surprising were questions asked by Justice Anthony Kennedy and Chief Justice John G. Roberts Jr.
Justice Kennedy is the only one of the nine justices sitting on the Supreme Court considered a political moderate. Because of this, many times his vote is the swing vote.
Day 2 hinted strongly that Justice Kennedy will likely rule against the Affordable Health Care Act.
On the other hand, although Chief Justice Roberts is a noted conservative, he seemed to be equally tough on both sides.
All in all, the Affordable Health Care Act took a beating. Based on the questioning, I strongly believe the portion of the Act called the "mandate" – the part that compels us to buy federally regulated health insurance — will be struck down as unconstitutional.
DAY 3: Is a Half a Loaf Better or Worse?
On Day 3, the Justices operated under the assumption that they will strike down the "mandate" portion of the Affordable Health Care Act.
That raised the issue of "severability" – whether the unconstitutional part of the Act can be separated from the rest of the law.
In this case, the Court must decide if it wants to trash the whole Act, or if it only wants to trash the "mandate" portion and send the rest back to Congress for review.
As Justice Elena Kagan aptly put it: "Does Congress want half a loaf? Is half a loaf better than no loaf?"
Petitioners arguing against the Act want to do away with the Act in its entirety.
In contrast, government argued that even if the "mandate" portion is found unconstitutional, the rest of the health care act should go into effect.
There was a lot of debate about how getting rid of the mandate portion would affect the economics of the rest of the Act. For instance, it is unclear if the remaining portions of the Act would be able to fund themselves without being bolstered from revenue obtained in the "mandate" portion.
Some of the Justices seemed to lean towards striking the whole thing, and letting Congress come up with a new health care reform plan. They saw it as an inappropriate interference with legislative power to go in and pick and choose what to keep from the health care act.
Other Justices seemed to think that instead of making Congress start painstakingly from scratch, the Court should take the good and throw out the bad.
This one is a really, really close call. In the end, I do think the whole thing will be done away with. Congress will have to come up with something brand new, and specifically, something that does not force individuals to participate.
This likely means no universal health care for the United States anytime soon.
Related Articles and News:
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- The Wall Street Journal:
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- National Public Radio:
Reading Between The Lines Of Monday's Supreme Court Arguments
- The Boston Globe: Day 3 analysis: The health law hearings on severability, coercion, and liberty
- The New York Times:
Supreme Court Ruling Could Revive Health Care for 2012 Campaign
- CBS News:
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