updated 6-28-12` with the opinions of the SUPREME COURT







The Supreme Court's epic oral arguments on the constitutionality of the Affordable Care Act began Monday with a kind of tease. The 90-minute exchange explored a technical side issue about taxes, but even so it suggested that the Justices will rule on the merits and are skeptical of some of the Obama Administration's claims.

The issue involves the Anti-Injunction Act, an 1867 law that says taxpayers can't challenge a tax until it's collected. ObamaCare's individual mandate says everyone must buy health insurance or pay a penalty, but it doesn't kick in until 2014, so the Court could use this law to defer a final decision on the mandate's constitutionality.

The Obama Administration argued that the mandate is not a tax under the Anti-Injunction Act, because like the 26 state plaintiffs it wants the Court to rule on the merits. The irony is that Tuesday the Administration will turn around and claim the mandate is a legal exercise of Congress's taxing power. Monday's proceedings indicate the government may have some trouble making that case, even among the High Court's liberals.

"Now, here, Congress has nowhere used the word 'tax,'" noted Justice Stephen Breyer. "And so why is this a tax?" he asked the Court-appointed attorney Robert Long. The Justice later added that "they called it a penalty and not a tax for a reason. They wanted it to fall outside that." Justice Breyer may be referring to ObamaCare's statutory language, though he could also cite the drafters' many public professions that the individual mandate is not a tax. The Obama Democrats structured the mandate under the Commerce Clause in a bid to escape political accountability for raising taxes.

Justice Elena Kagan asked Mr. Long, "aren't you trying to rewrite the statute, in a way? . . . Congress, it must be supposed, you know, made a decision that that shouldn't be the way the statute reads, that it should instead be a regulatory command and a penalty attached to that command." Mr. Long deadpanned, in the understatement of the decade, "Well, I would not argue that this statute is a perfect model of clarity."

Justice Ruth Bader Ginsburg also doubted that the mandate is a tax, which is particularly notable because most everyone on the legal left thinks the law is more than vindicated by the taxing power, open and shut. Well, not so fast. We'll learn more when the Court tackles the individual mandate today.

Copyright 2012 Dow Jones & Company, Inc. All Rights Reserved

This copy is for your personal, non-commercial use only. Distribution and use of this material are governed by our Subscriber Agreement and by copyright law. For non-personal use or to order multiple copies, please contact Dow Jones Reprints at 1-800-843-0008 or visit

Did John Roberts Throw A Wrench In Major Argument Against ‘Obamacare’?


In a little-noticed exchange Monday, conservative Supreme Court Chief Justice John Roberts may have tipped his hand that he’s entertaining the possibility that the health care law’s individual mandate can be upheld on a constitutional basis that’s different from the one supporters and opponents have made central to their arguments.

For over a year now, observers and experts have assumed that the court’s final decision will hinge on the extent of Congress’ power to regulate interstate commerce. But the justices could also upend that conventional wisdom, and in a worrying sign for the plaintiffs on Monday, Roberts unexpectedly highlighted one way they could do that.

In an exchange with a plaintiffs attorney, Roberts suggested he’s skeptical that the mandate and its penalties can be treated separately and may have opened the door to finding that Congress’ power to impose the mandate springs from its broad taxing power.

“The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense,” Roberts said, over strong objections from attorney Gregory Katsas. “It’s a command. A mandate is a command. If there is nothing behind the command, it’s sort of, well what happens if you don’t file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime. … Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.”

That wasn’t what the challengers wanted to hear. A key feature of their argument is that the individual mandate is distinct from the fine the government will assess on people who fail to purchase insurance. They say the case isn’t about Congress’ power to tax or penalize people but rather about its power to force people to take actions they may not want to take. Roberts dismissed this distinction.

The question now is how far-reaching the implications of that dismissal are. It’s possible that Roberts was linking the mandate and its enforcement mechanism for the purpose of answering a much narrower question — that it wasn’t a tip-of-the-hand at all. But if the two measures are linked, then the court could easily conclude they both stem from the same power, and give them the green light.

“Struck me too,” said Timothy Jost, a legal scholar and supporter of the health care law, who has followed these arguments very closely. “This is a big problem for the states’ Medicaid argument and might even support the federal government’s argument that the mandate is an exercise of the taxing power.”

The states want to avoid that at all costs — the taxing power is far too broad. In a written brief, attorneys for the state respondents noted, “The federal government’s last ditch effort to abandon its earlier rhetoric and defend the mandate as a tax fails for the simple reason that, regardless of its enforcement mechanism, the mandate itself is not a tax.”

Roberts suggested Monday that distinguishing between the two might not be so easy.

Randy Barnett, a constitutional scholar and one of the architects of the legal challenge, isn’t concerned just yet. He thinks Roberts’ critique was limited to the narrower subject of Monday’s arguments over whether the court has the jurisdiction to rule on the merits of the case yet, given that nobody will be assessed a fee for violating the mandate until 2015.

“The only thing I think Chief Justice Roberts was expressing resistance to was our argument that the mandate was separate from the penalty for purposes of the [Anti-Injunction Act],” Barnett said in an email. “That is only one of the bases on which the AIA does not foreclose consideration on the merits. I don’t think he was signaling anything at all about the constitutionality of the mandate penalty, the subject of tomorrow’s argument. If he was, however, I expect to get a much better sense of that tomorrow so we won’t have to wait long to find out.”


Constitution, HCR/SCOTUS, Health Care, Individual Mandate, John Roberts, Taxes

WASHINGTON -- Rick Santorum will make an appearance on the steps of the Supreme Court on Monday, when the Court will commence three days of arguments as to whether President Obama's health care overhaul is constitutional.

Santorum will speak to the press around midday, a campaign spokesman told The Huffington Post.

For the last month, Santorum has made health care the central theme of his campaign, charging that frontrunner Mitt Romney is "uniquely disqualified" from running against Obama, because Romney passed a health care overhaul as governor of Massachusetts that included a mandate to buy health insurance, like Obama's law.

On Sunday night, Santorum became angry and cursed at a New York Times reporter who he felt had taken out of context his comment that Romney is "the worst Republican in the country to put up against Barack Obama." Santorum told the reporter, Jeff Zeleny, that he was "the worst Republican to run on the issue of Obamacare, and that's what I was talking about."

As national attention turns to Obamacare, Santorum has an opportunity to create momentum in the Republican presidential primary, heading into primary contests in Wisconsin, Maryland and Washington, D.C. on April 3 (he is not on the ballot in D.C.). He is expected only to be competitive in Wisconsin, and even there it is an uphill battle, with the only recent poll in the state showing Santorum down 13 points to Romney.

If Santorum loses all three contests on April 3, it may be hard for him to survive through April to May. After the April 3 contests, there are no primaries for three weeks, and on April 24, Santorum faces a difficult lineup of states, with challenges in his home state of Pennsylvania and four other states voting that day that are advantageous for Romney: New York, Connecticut, Delaware and Rhode Island. In May, however, there are some primaries that favor him in Southern states.



DAY 2  MARCH 27, 2012


Obamacare Foes Score Points, But Kennedy's A Wild Card

Three of the most conservative justices on the U.S. Supreme Court hammered the government’s top lawyer in oral arguments over the constitutionality of the healthcare reform act today. But swing Justice Anthony Kennedy shifted from hostile questions to apparent support for the government’s key position by the end of the two-hour session.

The marathon session seemed to favor the challengers, if only because U.S. Solicitor General Donald Verrilli spent most of his time on the ropes. It’s always dangerous to predict how a Supreme Court case will go based on oral arguments, however. No one seemed to eliminate the lightly-discussed argument that Congress had the power to pass the law under its broad taxing authority.

“I think we won today — but that’s not how courts decide things,” said Bill McCollum, a partner with SNR Denton in Washington and former attorney general of Florida, which brought the case challenging the law on behalf of 26 states. McCollum, who attended the arguments in the packed chambers of the Supreme Court, said Kennedy appeared inclined to side against the individual mandate “but he asked some probing questions of the state side that might lead you to believe he could go the other way.”

Late in the session Kennedy mused that perhaps the health care market is different from other markets and could require the sort of federal regulation Congress enacted. “That’s my concern in the case,” Kennedy said.

Supreme Court litigator Andrew Pincus with Mayer Brown faced a similar barrage of questions when he argued for AT&T in the closely watched AT&T vs. Concepcion last year.

“Scalia asked three hostile questions right out of the box and the reporters all wrote `Scalia sides with plaintiff lawyers,’” Pincus said. “Then he wrote the opinion” awarding AT&T the win, he said.

The early going was certainly tough on the government’s top lawyer, facing nine justices for the second day in a row. Chief Justice John Roberts peppered Verrilli with questions about how the law compelling everybody to buy health insurance was different than a law requiring people to buy cellular phones so they can call 911 in an emergency, or broccoli. The Obama administration says healthcare is unique because everybody will be a consumer sooner or later, but Roberts didn’t agree, saying everybody uses emergency services and buys food, too:

There’s this health care market. Everybody’s in it. So we can regulate it, and we’re going to look at a particular serious problem, which is how people pay for it. But next year, they can decide everybody’s in this market, we’re going to look at a different problem now, and this is how we’re going to regulate it. And we can compel people to do things — purchase insurance, in this case. Something else in the next case, because you’ve — we’ve accepted the argument that this is a market in which everybody participates.

Justices Antonin Scalia and Samuel Alito also pressed relentlessly with questions about what made healthcare different, and how they could define the limits on Congressional power if they allow forced purchases of insurance. Alito was particularly concerned about the subsidies embedded in the law that flow from young, healthy citizens to older ones with bigger medical bills. He noted that the average individual health policy costs $5,800 yet young people consume less than a tenth of that each year, casting doubt on the government’s argument that the law is necessary to prevent the uninsured from shoving their costs on the insured.

“You can’t just justify this on the basis of their trying to shift their costs off to other people, can you?” he said.

Verrilli said the young will get other benefits under the law, such as guaranteed access to insurance, and Congress has imposed similar cross-subsidies in other markets such as telephone service and milk.

Scalia, Alito and Roberts seemed either hostile to the mandate or at least concerned about its breadth, and Justice Clarence Thomas, who asked no questions, is assumed to be a skeptic as well. Alito, at one point, delivered a “question” that sounded more like a brief for the challengers:

The reason why there is cost shifting is because the government has mandated that. It has required hospitals to provide emergency treatment, and instead of paying for that through a tax which would be born by everybody, it has required — it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital.

But the challengers need five votes and Justice Anthony Kennedy didn’t offer them much support. He, too, peppered the government lawyer with questions including where the limit lay on Congress’s power to regulate commerce.

Your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?

Verrilli proposed a test which would leave “forced purchases of commodities” unconstitutional but allow for Congress to dictate the method of payment — in this case insurance for healthcare costs that are unpredictable and can overwhelm people who aren’t financially prepared for them. That seemed to satisfy Kennedy, who toward the end of the arguments said:

I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.

It would be dangerous to predict how Kennedy will vote in this case, said M. Miller Baker, a veteran Supreme Court litigator with McDermott Will & Emery in Washington. Jones Day attorney Michael Carvin, representing the the National Federation of Independent Business, tried to appeal to Kennedy by comparing what the law does to individuals with federal laws Kennedy has voted to strike down that took away powers that belong to the states.

“Kennedy could come down either way on this,” Baker said. “There will be uncertainty up until the end.”

None of the justices seemed concerned about the tax question, perhaps because it was discussed exhaustively yesterday and the Obama administration was forced to concede that it considered the penalty a tax for some purposes and not for others. McCollum said there are other good reasons for the government to go lightly on this one: Paul Clement, arguing for the states, said the penalty might be considered a “direct tax,” which under the Constitution must be apportioned among the states. The only reason the federal income tax is exempt from this requirement is because of a constitutional amendment.

The argument that the entire law can fall under Congress’s taxing authority “is lost and I think the reason it’s lost is because not even Breyer and Ginsberg believe in it,” McCollum said.

If the day went badly for the government’s top lawyer, that may be because the case presents fiendishly complex questions of law and the philosophy of government. CNN legal analyst Jeffrey Toobin said the arguments were a “train wreck for the Obama administration” and said Verrilli wasn’t prepared. Baker disagreed. “Don Verilli’s doing something unprecedented –he’s arguing three days in a row before the Supreme Court,” Baker told me. “When somebody else does that, they’ll be in a position to critique.”



Today, March 27, 2012, the Supreme Court will hear two hours of oral argument concerning the constitutionality of the individual mandate. The individual mandate is the essential component of ObamaCare. It requires millions of Americans to buy and indefinitely maintain health insurance or face annual penalties.

The individual mandate marks the first time in the 220-plus year history of our Constitutional form of government that Congress has required American citizens to purchase a product (in this situation, health insurance) from a private company simply because they are American citizens. Previously, Congress provided us with incentives to buy certain products; it did not require us to make those purchases. For example, Congress provided extra money toward the purchase of a new car via the "Cash for Clunkers" program if we chose to buy a new car, but Congress did not require anyone to buy a new car.

The principle behind the individual mandate – that Congress can compel Americans to purchase a product – is a game changer for our country. Should the Supreme Court uphold this bold assertion of power, the Court would be giving Congress virtually unlimited power under the Commerce Clause. From then on, Congress could tell us what to buy and what not to buy (no matter the product); if we refused, we would be hit with annual penalties.

This is not mere speculation. It is the position being advanced by the federal government. During oral argument in a federal court in Pennsylvania in another ObamaCare case, the federal government's attorney acknowledged to the judge that, under the government's theory of the Commerce Clause, if Congress determined that following the adage "an apple a day keeps the doctor away" would improve Americans' health, then Congress would be within its Commerce Clause power to order Americans to purchase apples. Further, the government's attorney did not, and could not, name any requirement to purchase a commodity from a private company that Congress would lack the power to enact.

Because the broad expansion of federal power underlying the individual mandate would, if accepted, lead to a virtually unlimited power for Congress, it is critically important that the Supreme Court invalidate the individual mandate (as well as the entire ObamaCare law). As the Supreme Court haS

said repeatedly, the Constitution itself illustrates that Congress's power under the Commerce Clause has limits. There are no limits, however, to Congress's power under the federal government's view of the Commerce Clause.

Indeed, should the individual mandate be upheld by the Supreme Court, our nation and system of government will be forever changed. Although the Constitution deliberately divides power among the various branches and levels of government so that no single individual or entity may wield unlimited power, acceptance of the federal government's radical view of the Commerce Clause would fundamentally alter the constitutional balance of power.

For more information about the options the Court has in resolving the ObamaCare case, read my previous post here.

The American Center for Law & Justice ("ACLJ") filed an amicus brief on the

individual mandate issue on behalf of itself, 119 Members of the United States Congress, and more than 144,000 supporters of the ACLJ's efforts to overturn ObamaCare. You can access that brief here.

The ACLJ also filed its own challenge to ObamaCare and the individual mandate. That case is pending at the Supreme Court. You can access information about that case here and here.

The audiotape of the individual mandate oral argument will be available this afternoon on the Supreme Court's website by 2:00 p.m. eastern time. You can access the Court's website here.

3.27.2012 Update:

During oral argument today, a number of Justices focused on the main problem with the individual mandate: that, should the mandate be upheld, it would give Congress unlimited power under the Commerce Clause and permit Congress to place additional mandates on American citizens to purchase other products from private companies or face annual penalties. Up until now, the Supreme Court has recognized that Congress’s power under the Commerce Clause has limits. The federal government today, as in the other ObamaCare cases, was unable to articulate any true limits to Congress’s powers should the individual mandate be upheld.



DAY 3  -[ MARCH 28, 2012


Supreme Court closes historic ObamaCare arguments, as public awaits verdict


The Supreme Court on Wednesday wrapped up its exhaustive three-day session which will determine the fate of the federal health care overhaul, ending with what is arguably the most consequential question of the case -- if the individual mandate is struck down, does the law survive?

The nature of questioning over the last few days signaled several judges have serious doubts about the law. But they hardly indicated which way the often-divided court would rule, with a decision expected by summer.

significant domestic policy achievement is a blockbuster. On the final day of arguments, the gravity of the decision was evident, as justices struggled over what to do with the rest of the Affordable Care Act if they also rule that its central provision is out of bounds.

The question dealt with whether the entire health care law should stay or go or be revised if the so-called individual mandate -- the requirement that everyone buy health insurance -- is struck down. That, and a debate over the law's Medicaid requirements, filled the last day of discussion in the landmark hearings.

On the mandate, the justices broadly examined the other parts of the law which the Obama administration was trying to save while its opponents asked for complete repudiation. The discussion centered on what to do now with this case but also on concerns over the proper role for the courts in interpreting what Congress would want done with a law that's been changed from its original version.

Justice Antonin Scalia raised concerns over the role of the courts in going through this law and others line by line looking for parts to strike down.

"This is really a case of first impression," Scalia said. "I don't know another case where we have been confronted with this decision. Can you take out the heart of the act and leave everything else in place?"

To that end, Scalia made specific mention of a notorious provision of the law, dubbed the "Cornhusker Kickback," which along with other sweeteners were added to gain votes. That sort of legislative wheeling and dealing made it difficult for some justices, especially Scalia, to see how the rest of the ACA could survive without the mandate.

Some justices were open to keeping at least parts of the law, though.

Justice Ruth Bader Ginsburg likened it to a preference for a salvage operation rather than a wrecking operation.

Ginsburg made note of many provisions in the ObamaCare law that have a modest relationship to the controversial individual mandate and could work just fine without the forced conscription of Americans onto health insurance rolls.

"I mean, it's a question of whether we say everything you did is no good, now start from scratch, or to say, you know, there are many things in here that have nothing to do, frankly, with the affordable healthcare, and there are some that we think it's better to let Congress to decide whether it wants them in or out."

Echoing that view was Justice Elena Kagan, regarding the creation of local health care exchanges to pool individuals into collectives that can bargain for better rates.

She said sometimes half-a-loaf is better than no loaf and Congress "seems like they want half a loaf."

Justice Sonia Sotomayor said she agreed with that sentiment, but lawyer Paul Clement, arguing on behalf of the 26 states challenging the law, said that sometimes half a loaf is worse and that the entire law should be set aside.

Clement cited a landmark campaign finance case that he said led to decades of uncertainty and problems in political races. "This court looked at a statute that tried to, in a coherent way, strike down limits on contributions and closely related expenditures," Clement offered about the case Buckley v. Valeo. "This court struck down the ban on expenditures, left the contribution ban in place, and for four decades Congress has tried to fix what's left of the statute, largely unsuccessfully."

The Obama administration's view is that only two parts of the law -- guaranteeing insurance for all people and at a rate affordable for all participants -- should go down if the individual mandate is invalidated.

But Justice Anthony Kennedy expressed concern with that view, saying it might end up worse for insurers who would still need to cover customers added on to their roles.

"We would be exercising the judicial power if one act was stricken and the others remained to impose a risk on insurance companies that Congress had never intended," Kennedy said. "By reason of this court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike the whole."

In trying to preserve those other parts of the law, Deputy Solicitor General Edwin Kneedler noted portions of the ACA that are already in effect and made mention of the provision allowing some adult children to obtain coverage through their parents.

"It's going to bankrupt the insurance companies," Scalia shot back.

Sotomayor then fired off a line of argument from Tuesday's hearing saying she thought 26-year-olds were healthy. A day earlier, the justices seemingly opposed to the law raised concerns over the costs of the mandate on younger, more healthy people.

Chief Justice John Roberts wondered "where is the sharp line" to draw in determining what to keep and what to exclude.

Kneedler said that line is based on what Congress called essential elements of the law.

The Court appointed lawyer Bartow Farr to defend the 11th Circuit's ruling that the entire ACA should be upheld. He said the rest of the act still "serves the central goals that Congress wanted" of near universal care at an affordable cost.

But Kagan noted that based on the experiences of the states, Congress took the Massachusetts model which tied the individual mandate to the rest of the law.

The afternoon session focused on one specific provision of the law that expands the Medicaid program providing health care to America's poor. The federal-state partnership was created in 1965 and has expanded in the years since. Clement, again arguing on behalf of the 26 states fighting the law, said the expansion under the ACA was coercive, in part, because of the massive costs involved and his contention that the states have no choice but to maintain participation in the program.

Clement had barely finished his first sentence when Kagan immediately asked him why it was coercive for the federal government to give billions of dollars in additional aid to the states. "There are no matching funds requirements, there are no extraneous conditions attached to it, it's just a boatload of federal money for you to take and spend on poor people's healthcare," she declared. "It doesn't sound coercive to me, I have to tell you."

To that, Clement said the government's money was still coercive because it assumed the states would take the money and that Congress was leveraging their prior participation in the program. Kagan pressed further with a hypothetical asking Clement if he'd accept a lucrative job. He said it would depend on where that money came from.

"Wow! Wow!" Kagan exclaimed in wonderment. "I'm offering you $10 million a year to come work for me and you are saying this is anything but a great choice?" Clement sharply replied, "Sure, if I told you, actually it came from my own bank account."

That exchange served as an appetizer for a meal full of questions from the Court's more liberal members peppering Clement. Sotomayor said she had troubles with Clement's arguments on the funding matter: "We're going to say to the federal government, the bigger the problem, the less your powers are. Because once you give that much money, you can't structure the program the way you want. ... I don't see where to draw that line."

Perhaps the biggest issue of Clement's argument, if not the entire case, is addressing whether the states are forced to accept the Medicaid expansion under the threat of losing all preexisting Medicaid funding. Justice Stephen Breyer was the most vocal against this idea saying it would be "unreasonable" for a government official to actually take all money away from a state for noncompliance with the new mandate.

Roberts didn't seem too keen on that argument, focusing instead on the ability, however unlikely, of the Health and Human Services secretary to withhold money.

"So why shouldn't we be concerned about the extent of authority that the government is exercising, simply because they could do something less?" he asked.

Solicitor General Don Verrilli, who was criticized in some quarters for his performance Tuesday, said there was no significant history to suggest an HHS secretary would withhold funds -- after all it's in everyone's interest to make sure money is available for health services, a point backed by Kagan.

But Roberts likened the threat of possibly withholding funds to Dirty Harry, saying it was unlikely the states would reply to Washington's demands with "make-my-day" bravado.

For Justice Anthony Kennedy, the issue of compulsion raised concerns of whether the central government was getting too involved in people's lives.

The close of the case also brought the curtain down on nearly six-and-a-half hours of arguments over the health care law. Just before they adjourned, the two lawyers offered a final plea to the court. Verrilli spoke first about the problems of people not being able to afford health insurance.

"There is an important connection, a profound connection between that problem and liberty. And I do think it's important that we not lose sight of that," he said.

Clement soon followed to say, "I would respectfully suggest that it's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not."

Click here for full coverage of the ObamaCare hearings.



I call it defending the indefensible. What unfolded inside the Supreme Court on the individual mandate was very clear and direct. Justice Anthony Kennedy, considered to be the swing vote in this issue, expressed serious skepticism about the constitutionality of the mandate - the government requiring citizens to purchase health insurance.

And, his skepticism comes with good reason. The Solicitor General, who had a difficult day articulating his position supporting the mandate, simple did not have a viable defense. There is no 'limiting principle' here. In other words, if the government gives the green light to mandate the purchase of health insurance, where does it stop?

As I told Sean Hannity on FOX News, the most important development in the oral arguments about the individual mandate came when Justice Kennedy said the mandate fundamentally changes the relationship of a citizen with the government. You can watch the interview here.

You can never read the tea leaves and predict the outcome of a Supreme Court case based solely on oral arguments. I've had the privilege to present oral arguments before the high court 12 times, and participate in 20 cases. What happens during oral argument certainly plays a key role in the final decision, but it's always risky to predict an outcome based on that dynamic alone.

What I do know is this. Going into the arguments, those who supported the individual mandate thought their position would carry the day with ease. When the arguments were over, it was a different story. With Justice Kennedy voicing serious concerns about the mandate, it's fair to conclude the mandate may be in big trouble.

The high court now focuses on the severability issue - whether ObamaCare can stand even if the mandate is struck as unconstitutional. Our position is the mandate and the entire health care law need to go


Today, March 28, 2012, is the final day of Supreme Court oral argument on ObamaCare. Today the Court will consider two issues: (1) whether the individual mandate (requiring Americans to buy health insurance from private companies for the rest of their lives or pay annual penalties) is severable from the rest of ObamaCare and, if not, whether the Court should invalidate the entire law; and (2) whether the Medicaid expansion is constitutional.

The Court will devote one and one-half hours of oral argument to the severability issue during its morning session and one hour of oral argument to the Medicaid issue during its afternoon session.


The individual mandate is the lynchpin of ObamaCare. The federal government has conceded in court that the individual mandate is the essential component of ObamaCare's regulation of the health insurance and health care markets. Congress clearly would not have passed ObamaCare without the individual mandate. Thus, once the Court determines that the individual mandate is unconstitutional, as it should, the Court should not sever the mandate from ObamaCare. Absent the individual mandate, the remaining provisions of ObamaCare cannot function properly, and the Court should invalidate all of ObamaCare.

The American Center for Law & Justice ("ACLJ") filed an amicus brief on the severability issue on behalf of itself, 117 Members of the United States Congress, and more than 103,000 supporters of the ACLJ's efforts to overturn ObamaCare. You can access that brief here.


Medicaid is supposed to be a cooperative program between the federal and State governments to pay medical and health-related expenses for low-income individuals. Traditionally, State governments have had flexibility on how to administer their programs, which they themselves manage.

Through ObamaCare, the federal government has reorganized Medicaid to compel States to add millions of additional people to their Medicaid roles, which will greatly increase the costs to each State.

Our Constitution embraces the concept of federalism and gives the federal government only limited, enumerated powers, while the rest of the powers are retained by the States and the people. Under our Constitution, the federal government lacks the power to directly require the States to comply with these new Medicaid requirements.

As such, in ObamaCare the federal government has used its spending power to indirectly require States to comply with the expansion of Medicaid

This indirect compulsion, however, is indirect in name only because the States have no choice but to comply. If any State refuses to accept the reorganization of Medicaid and the associated additional costs to that State, the federal government can withhold all federal Medicaid funding it provides to that State, thus putting the entire Medicaid financial burden on that State.

In 2009, the federal government provided States with more than $250 billion in Medicaid funding. It is obvious that the threat to withhold all Medicaid funding will force each State to comply with the new Medicaid requirements.

To paraphrase Don Corleone from The Godfather, the federal government has made the States an offer they cannot refuse.

The Court will consider whether the federal government is permitted to coerce the States in this way. In the final analysis, the Court should rule that the Medicaid expansion in ObamaCare is unconstitutional. If it does not, the Court will be allowing the federal government to use its spending power in a way that destroys the concept of federalism. The federal government will be able to use its spending power without limits, and the powers that belong to the States under our Constitution will be subverted.

The audiotape of the severability oral argument will be available this afternoon on the Supreme Court's website by 2:00 p.m. eastern time, and the audiotape of the Medicaid oral argument will be available today by 4:00 p.m. eastern time. You can access the Court's website here.

For more information about the options the Court has in resolving the ObamaCare case, read my previous post here.

3.28.2012 Update:

Regarding the severability issue, it is clear from today’s oral argument that the Justices understand that they have three options should a majority of them rule the individual mandate unconstitutional: (1) decide that the individual mandate is severable, which means the rest of ObamaCare would remain in effect; (2) decide that some, but not all, of ObamaCare must be invalidated along with the mandate; or (3) decide that the individual mandate is not severable and all of ObamaCare must be invalidated.

Regarding the Medicaid expansion issue, some of the Justices appeared concerned about where the line should be drawn to limit the federal government’s use of its spending power so that it does not become coercive to the point of violating the rights of the States.

This is an understandable concern. Under our Constitution, the federal government is only supposed to have limited, enumerated powers. The rest of the powers remain with the States and with the people. As the Ninth Amendment to the Constitution states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And, according to the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In our view, the Medicaid expansion, as with the individual mandate, exceeds the limits of federal power.


to be continued in June when the supreme court makes their decision

Supreme Court decision moves health-care debate squarely into political sphere

The Supreme Court’s momentous decision Thursday to uphold the Affordable Care Act prompted swift responses from the two presidential candidates, moving the debate squarely into the political sphere and setting it up to figure prominently for the remainder of the campaign.

President Obama, speaking from the East Room of the White House, celebrated the Supreme Court’s decision and offered a detailed defense of the landmark legislation. Although he said any discussion of the politics of the decision “completely misses the point,” his effort to sell the law made clear that the battle over its fate — and its role in the campaign — are far from over.

“I didn’t do this because I thought it was good politics,” Obama said, touting the act’s provisions to protect patients with preexisting conditions, to allow children up to age 26 to remain on their parents’ plans and to require insurers to provide free preventive screenings. “I did it because I believed it was good for this country.”

Obama said that even as implementation of the act continues, it can be improved upon. But the court ruling allows the country to avoid, Obama said, going back to “fight the political battles of two years ago,” when the law was passed.

Republican Mitt Romney, speaking on the roof of an office building in downtown Washington, the Capital behind him and a lectern in front reading “Repeal & Replace Obamacare,” also made clear that the conversation isn’t over. He said the Supreme Court’s ruling doesn’t change the fact that the act is “bad law” and “bad policy.”

“What the court did not do on its last day in session, I will do on my first day as president, and that is, I will act to repeal Obamacare,” Romney said.

Romney avoided criticizing the Supreme Court, taking aim instead at the Affordable Care Act and the president who signed it. Although he promised to retain some of the act’s more popular provisions, including protections for patients with preexisting conditions, he excoriated the rest and called the law a “job-killer” overall.

The 5-4 decision was a huge win for Obama, for whom the health-care legislation is a signature achievement. The ruling also undermined the central argument being made by Romney and other Republicans: that the act’s central provision, the individual mandate, is unconstitutional.

Still, the ruling provided challenges and opportunities to both sides. Obama’s campaign manager, Jim Messina, put out a fundraising appeal before the ruling was even issued. And Andrea Saul, a Romney spokeswoman, said the Republican’s campaign had raised $200,000 in the first hour following the ruling.

Americans for Prosperity, the conservative, tea-party-friendly advocacy group, offered an additional clue Thursday as to how Republicans would try to use the Court’s ruling to their advantage. In an interview with Politico, an AFP leader said the group plans to launch a $9 million ad campaign linking Obama to the Supreme Court’s characterization of the law’s individual mandate as a tax.

The challenge for Obama to move public opinion on whether the Affordable Care Act was a good idea remains high. Republicans, and Romney, will continue to push to repeal the act, and if that sentiment remains high among voters, it could affect the outcome in November.

Still, it remains to be seen whether Romney wants a protracted conversation about repealing the act. The former Massachusetts governor is unlikely to want to remind voters that he led the effort in that state to pass a health-care law, including an individual mandate, that was a basis for the federal legislation. Romney also has been clear that he wants to keep the conversation focused squarely on the economy, and an extended debate about the Affordable Care Act would detract from that.

Obama is in a similar position. At the end of his remarks at the White House, he said: “Now’s the time to keep our focus on the most urgent challenge of our time: Putting people back to work.”

For days, the White House has been issuing a series of defenses of the Affordable Care Act.

On a two-day swing through Virginia this week, Romney laid out how he would respond to either scenario possible from the Supreme Court.

“As you know, the Supreme Court is gonna be dealing with whether or not Obamacare’s constitutional. If it’s not, if Obamacare is not deemed constitutional, then the first three- and-a-half years of this president’s term will have been wasted on something that has not helped the American people,” Romney said Tuesday to a crowd of 1,500 in Salem. “If it is deemed to stand, then I’ll tell you one thing. Then, we’ll have to have a president, and I’m that one, that’s gonna get rid of Obamacare. We’re gonna stop it on day one.”

FROM:  the washington post

State leaders and healthcare groups react to Supreme Court ruling

With the U.S. Supreme Court upholding President Obama's Affordable Care Act, state officials and healthcare leaders met the decision with mixed reaction, largely along party lines.

Sen. Barbara Boxer, a Democrat, called the ruling on Twitter "great news for America's families."

And Democratic Sen. Dianne Feinstein, in a statement, also heralded the news: "The Supreme Court today upheld the healthcare reform law passed by Congress in 2010, meaning Californians can be confident that access to affordable health insurance is finally a reality."

Conservatives, however, who have rallied against the healthcare law voiced their opposition to the ruling.

FreedomWorks, a national conservative group, vowed to fight the law.

“Our work is far from over,” said Dean Clancy, vice president of healthcare policy. “Republicans must strike while the iron is hot and immediately begin efforts to repeal the law in Congress and replace it with a patient-centered system, which is the most effective and compassionate option on the table for healthcare reform today.”

Timeline: Healthcare reform's long history in the U.S.

Locally, some healthcare advocates, like the Long Beach-based SCAN Foundation, welcomed the decision.

In a statement, Dr. Bruce A. Chernof, president and CEO of the group, which advocates on behalf of the elderly, said: “The Supreme Court’s decision today to uphold the Patient Protection and Affordable Care Act clears the path for transforming our health and long-term care system into one that works for all Americans, young and old alike."

In a 5-4 vote, with Chief Justice John G. Roberts Jr. writing the majority opinion, the court ruled the healthcare law constitutional. He was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Dissenting were Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

The decision has large ramifications for California, which has nearly 7 million uninsured, or about 20% of the population, according to the California HealthCare Foundation.

The state now stands to receive as much as $15 billion a year to extend coverage to millions of the poor and uninsured starting in 2014.

Under the federal law, nearly 4 million Californians are expected to obtain new or improved coverage by 2019. About half would be covered through an expansion of Medi-Cal, the joint state-federal program for the poor and disabled.

Another 2 million are expected to purchase private policies with federal subsidies earmarked for families earning about $92,000 or less annually.


Healthcare law is upheld

Democrats 'ecstatic'; Republicans vow fight

California receives financial boost from Supreme Court ruling

What the Supreme Court Health Care Decision Means for Latinos

Read more:

WASHINGTON, DC - JUNE 28: A protester holds an American flag during a demonstration in front of the U.S. Supreme Court, on June 28, 2012 in Washington, DC. Today the high court is expected to rule on the constitutionality of the sweeping health care law championed by President Barack Obama. (Photo by Mark Wilson/Getty Images) (2012 Getty Images)

The Supreme Court decision on Thursday upholding President Barack Obama's Affordable Care Act, including its individual mandate requiring all Americans to buy health insurance will have a particular impact on the Latino population of the United States.

The matter is immensely important to Latinos, who number some 50 million in the United States and who are twice as likely as the general population to be uninsured.

Nearly a third of Latinos, or slightly more than 15 million of them, are uninsured. They are three times as likely as non-Hispanic whites to be uninsured.

The issue especially impacts Latino women.

“Latinas still face far too many health disparities, including higher rates of cervical cancer and unintended pregnancy," said Jessica Gonzalez-Rojas executive director of The National Latina Institute for Reproductive Health.

"The steps the ACA takes toward eliminating disparities in care are critical for Latina health.”

That rate may be much higher given that many more Latinos are undocumented.

To fill the void for lack of healthcare, many immigrants in the Latino community often rely on a patchwork of remedies that includes getting medicine from their native countries that sometimes have been outlawed in the United States because they are considered unsafe.

The 5-4 decision, with Chief John Roberts writing the decision for the majority, means Obama's Affordable Care Act will go into effect over the next several years. The individual mandate will not be upheld under the Constitution's Commerce Clause, but will be upheld as a tax, according to the majority opinion written by Roberts.

The court found problems with the law's expansion of Medicaid, but even there said the expansion could proceed as long as the federal government does not threaten to withhold states' entire Medicaid allotment if they don't take part in the law's extension.

The court's four liberal justices, Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, joined Roberts in the majority view.

Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas dissented.

The decision is a big win for President Barack Obama who invested much of the political capital of his first term in passage of the health care measure. This is the second major court victory by the Obama Administration. Earlier this week, the court agreed with the federal government and struck down three of four provisions of Arizona's immigration law.

The decision prompted immediate reaction from Latino leaders on the issue.

Congressman Luis Gutiérrez (D-IL) released a statement exclaiming that the ruling was a win for equality.

“Today's ruling makes a definitive statement about how dearly we hold the values of equality and opportunity in the United States,” said Gutierrez.

Nevada Governor Brian Sandoval, a Republican, accepted the ruling in a statement but asked for a reform by Congress.

“While I may not agree with the Supreme Court’s decision in this case, I respect the process envisioned by our founding fathers," Sandoval said. "The implications for Medicaid costs are still unclear, but Nevada will prepare to meet the serious financial implications of this decision.”

The National Council of La Raza, a Latino civil rights advocacy group, was happy with the decision tweeting, “The Supreme Court upholds health care reform: win for #LatinoHealth! Time to make the rest of law a reality.”

New Jersey Senator Robert Menéndez, a Democrat, said the decision was a victory for every American.

"I will oppose Republican efforts to repeal the consumer protections that would take us back to the days when insurance companies had free rein to do whatever they wanted.”

In Puerto Rico, the response is one of happiness, according to Guillermo Beytagh-Maldonado, a Latino rights activist who lives in Puerto Rico and New Jersey.

“The public health system in Puerto Rico is very dependent on Federal programs and resources,” Beytagh-Maldonado told Fox News Latino from Puerto Rico. “The reaction here to the Supreme Court decision is one of relief.”

Follow us on
Like us at

Read more:

Supreme Court Health Care Decision: Obamacare Live Blog

The Supreme Court Upholds Obamacare. We’ll be here all day updating with the decision, what’s going on outside the court, what it means for politics, the health care industry and your health care coverage.

Everything You Need to Know About the Decision

The Political Ramifications and Reaction

Read the Decision Here in PDF




this blog continues on page 184