Showtime: Obamacare goes to the Supreme Court

Anonymous Guest's picture
Submitted by Anonymous Guest on Thu, 2011-09-29 19:17

Obamacare Has Arrived in the Supreme Court
Hans von Spakovsky
September 28, 2011 at 11:00 am

The National Federation of Independent Business (NFIB) stole a march on the Obama Administration this morning by filing a petition with the U.S. Supreme Court appealing the 11th Circuit’s Obamacare decision.

The Department of Justice (DOJ) had announced on Monday that it was not going to ask all 11 judges of the 11th Circuit Court of Appeals to review en banc the August 12 decision of a three-judge panel of the 11th Circuit that found the individual mandate unconstitutional. This opened up a path to an appeal by DOJ to the Supremes.

However, with this petition, the NFIB jumped ahead of Eric Holder’s slow-moving DOJ (which until Monday had done everything it could to slow-walk this case filed by 26 states and the NFIB). The NFIB is obviously not appealing the three-judge panel’s opinion about the unconstitutionality of the individual mandate. But the NFIB is appealing the portion of the panel’s decision that held that the unconstitutional individual mandate could be severed from the Obamacare legislation.

[So the issue is this: congress has claimed that the "individual mandate" -- which forces individuals to buy a private product (an "approved" healthcare plan) or pay a fine to the federal government (which would be used as revenue for Obamacare) -- is an essential part of Obamacare. The 11th Circuit struck down the "individual mandate" as unconstitutional, yet claimed that, nevertheless, the rest of Obamacare could stand. NFIB (as well as many others) wants the entire legislation struck down. Hence, their petition to SCOTUS. At least two of the Supreme Court judges have already come out in favor of the legislation in earlier statements: Sotomayor and Kagan. Kennedy flip-flops on these sorts of issues. Breyer and Ginsburg are on the left. I have confidence in Roberts, Scalia, Thomas, and Alito. The deciding vote, therefore, will most likely be from Kennedy. Even if SCOTUS merely upholds the recent rulings against the individual mandate, it will be a success: the Department of Justice has stated that the mandate cannot be repealed at all by a court-decision because it is a tax, and can therefore be repealed only by another act of congress. However, this directly contradicts statements made many times by both congress and the president that the individual mandate is not a tax, but a fine or penalty. We'll see. Should SCOTUS actually uphold both the mandate and the rest of the plan, I expect to see reactivation of Tea Party demonstrations around the country. This is showtime!

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Re: the Individual Mandate penalty

darren's picture

(which would be used as revenue for Obamacare)

Correction: I am confident that if found constitutional by SCOTUS and put into practice as law, the revenue stream from the individual mandate penalty would be treated by government the same way the revenue stream from Social Security "contributions" are treated: i.e., the individual mandate penalty paid by individuals who prefer not to purchase an "approved" healthcare plan would be spent immediately on some other government program -- perhaps even to help prop up Social Security -- and an IOU put in its place for funding Obamacare. The mounting debt these accumulating IOUs would eventually represent would be treated as a reason for raising more taxes, cutting back promised services to those who allowed themselves to rely on the system, or both.

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