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Supreme Court Has Options on ObamaCare

By Edward White1330114577000

One month from Monday, the Supreme Court will hear six hours of oral argument over three days (March 26-28) in the legal challenge to ObamaCare that was brought by twenty-six States.

On the surface, the ObamaCare case is about health insurance. At its core, however, the case represents a clash of competing ideologies about the future of our country. On the one hand, there are those who want this nation to remain as it was founded: a country with a limited federal government, where the bulk of power resides with the States and the people to ensure that one individual, institution, or level of government cannot acquire the kind of unchecked, King-like power that has been used and abused all too often throughout history. On the other hand, there are those who want this nation to be transformed into a country with a centralized federal government, where Congress would have unlimited powers under the Commerce Clause.

In the ObamaCare case, the main issue before the Court is the constitutionality of the individual mandate. Through that mandate, Congress has, for the first time in our nation’s history, compelled millions of Americans to buy a product (health insurance) from a private company or pay an annual penalty for the rest of their lives. There are several conceivable results that the Court could reach in addressing the individual mandate.

First, the Court may determine that the individual mandate is constitutional. That would be the worst result for the country, with far-reaching implications for all Americans. As I explained in an earlier post, under the federal government’s view of the Commerce Clause, Congress can require Americans to either buy an unlimited variety of goods or services or be penalized annually. If that view is upheld by the Court, we would witness a fundamental, ill-advised transformation of our nation.

Gone would be the nation carefully constructed by our Founders, who deliberately divided power among the various branches and levels of government so that no single individual or entity could wield unlimited power. For example, when the Constitution was being considered for ratification and critics of the Constitution expressed their fear that it would create a centralized federal government, James Madison explained in Federalist Number 39 that the constitutional system had many aspects of a true federalist system, for good reason. Among other things, Madison noted the role that States play as sovereign entities in the ratification and amendment processes, and he declared that “the proposed government cannot be deemed a national [centralized] one[] since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.

In stark contrast, in the ObamaCare case, the federal government has advocated for a centralized form of government, one having the broad power to order Americans to buy whatever products Congress deems necessary, regardless of whether Americans need or want those products, and to impose financial penalties on those Americans who refuse to make the purchases.

Second, the Court may determine that the individual mandate is unconstitutional because it exceeds Congress’s authority. That result would be the best for the country, and it is the conclusion the American Center for Law & Justice (“ACLJ”) has urged the Court to reach. If the Court reaches that conclusion, our country would continue on its path as founded—one where the people have granted Congress limited powers and have reserved the remaining powers for themselves and the States. Problems with the health care and health insurance systems could be addressed thereafter through a variety of constitutional means at the federal and state levels.

Third, if the Court determines that the individual mandate is unconstitutional, as it should, the next question the Court must answer is to what extent, if any, the individual mandate is severable from the rest of ObamaCare (in other words, can the individual mandate be removed from the rest of the law, or does the entire law, or parts of it, become invalid because the mandate cannot be removed and the law, or parts of it, still function properly?).

The Court has three ways to resolve the severability issue:

(1) the Court could decide that the individual mandate is severable, which means that all other parts of ObamaCare would remain in effect;

(2) the Court could decide that the individual mandate and part, but not all, of ObamaCare are severable, which means that some of the law would remain in effect; or

(3) the Court could decide that the individual mandate (the essential component of ObamaCare) is not severable from the rest of the law, which would cause the Court to invalidate the entire law. This is the result the Court should reach, as the ACLJ has argued.

Indeed, how the Court rules on the severability issue could determine the future of the HHS contraceptive mandate discussed by my ACLJ colleague, Geoffrey Surtees, in various posts, including those here and here.

Finally, the Court may decide not to rule on the individual mandate issue for several more years. If the Court determines that the Anti-Injunction Act (“AIA”) applies, the Court and all other federal courts would be barred, as I discuss in a previous post, for several years before they could rule on the constitutionality of the individual mandate and whether it is severable from the rest of ObamaCare. (Application of the AIA, however, would not stop the Court from resolving at this time the constitutionality of the Medicaid expansion under ObamaCare, which is the final issue facing the Court.)

There are pros and cons to the Court delaying further rulings on ObamaCare for several years. On the positive side, a delay could provide time to repeal ObamaCare before it goes into full effect in 2014 depending upon how the 2012 elections play out. If ObamaCare were repealed next year, the Court’s delay would prevent the following unwanted situation from occurring: the Court issuing a decision this June upholding the constitutionality of the individual mandate, ObamaCare then being repealed, and the country being left with a Court decision establishing the principle that Congress has unlimited powers under the Commerce Clause. In that situation, the battle against ObamaCare would have been won through the repeal, but the war against the transformation of our system of government would have been lost through a decision giving Congress unlimited Commerce Clause power to use at a later date.

On the negative side, a delay in a decision would cause the country to undergo continuing uncertainty about the constitutionality of the law, and the country would be subjected to the full impact of ObamaCare for at least three to five years before the Court rendered its ruling.

Clearly, a lot is at stake in the ObamaCare case. When the Court issues its decision this June, we should know where we stand as a nation. Let us hope, for the sake of the country, that the Court accepts the arguments advanced by the ACLJ, which demonstrate that the individual mandate is unconstitutional and that the entire ObamaCare law should be declared invalid. Reforms to the health care and health insurance systems could then be addressed in a constitutional manner, unlike how they have been addressed by ObamaCare.

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