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Six Ways the Supreme Court Could Rule on Obamacare

9:01 AM, Oct 3, 2011 • By JEFFREY H. ANDERSON
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The majority of the 50 states claim that Obamacare is unconstitutional, the Obama administration claims that it's not, and both sides have now asked the U.S. Supreme Court to decide the question on appeal from a 3-judge panel of the 11th Circuit Court. In August, the panel (made up of two Clinton appointees and one George H. W. Bush appointee) ruled that Obamacare’s individual mandate — its requirement that essentially every American buy government-approved health insurance under penalty of law — is unconstitutional but that the rest of the legislation should be allowed to stand. The 26 states that filed suit in the case have appealed, arguing that the individual mandate is so central to the legislation as a whole that to void the mandate, while retaining the rest, is to leave something in place that’s unworkable and which Congress almost certainly never would have passed. The Obama administration also has appealed, arguing that the powers vested in Congress by the Constitution authorize its passage of all aspects of the 2,700-page legislation.  

Supreme Court

Supreme Court

The Court could presumably rule in any one of six ways: 

1. It could decide not to strike down any part of the legislation, ruling that Congress was authorized to pass the individual mandate under its power “To regulate Commerce...among the several States.” (Not striking down legislation should not be confused with declaring it to be “constitutional.”  The Court’s proper role is to void legislation if it violates “the manifest tenor” (the obvious meaning) of the Constitution — it should no more declare a law “constitutional” than a jury should declare a defendant “innocent”). Such a ruling would reverse the lower court’s ruling on the individual mandate.  

If the Court does indeed rule in this manner, it will have stretched the commerce clause to establish, for the first time, that Congress can force Americans to buy a particular commercial good — and can dictate what form of that good they must buy. At the very least, this would be true for all goods that every American partakes of in some way, such as food.

2. It could decide not to strike down any part of the legislation, ruling that the individual mandate is not really a mandate but rather is a new tax (on those who don’t have insurance), which Congress was authorized to institute under its power “To lay and collect Taxes...to...provide for the...general Welfare.” The problem with this is that President Obama emphatically insisted on national television that the individual mandate “is absolutely not a tax increase.” Moreover, Obamacare’s text doesn’t refer to the mandate as a tax. As the 11th Circuit Court panel put it, “[T]he individual mandate...was not enacted pursuant to Congress’s tax power” and therefore cannot be sustained on those grounds.

3. It could affirm the lower court’s ruling, by holding that the individual mandate is unconstitutional and allowing the rest of the legislation to stand. The problem with this is that — as the Obama administration itself has argued — without the individual mandate, the legislation would become “cost prohibitive.” In fact, because of the legislation’s requirement that insurers cover those with preexisting conditions at the same premiums that healthier people pay, the White House says that “the only way to keep people from gaming the system and raising costs on everyone else is to ensure that everyone takes responsibility for their own health insurance” — and the way that the legislation achieves this is through the individual mandate. 

In light of these White House comments, it seems somewhat farfetched to believe that a bill that overcame a filibuster with no votes to spare in the Senate, and which passed by only 7 votes in the House, would have passed either chamber with the individual mandate removed and everything else left in place.

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