The Obamacare Showdown — Preview, Part I

On Monday, Tuesday, and Wednesday of next week (March 26-28), the Supreme Court will hear arguments on the Affordable Care Act (ACA), or as we like to call it, Obamacare.  This is one of the most momentous showdowns in Supreme Court history – the Court’s decision will be a major landmark in determining the scope of federal power.  To get the conversation rolling, I’m offering a series of thumbnail previews of the issues to be argued. 

Monday’s session will concern a potentially significant issue that hasn’t received a lot of press: whether the legal challenges to ACA’s individual mandate* are premature under the Anti-Injunction Act. The Anti-injunction Act is a law going back to the nineteenth century that bars lawsuits challenging a federal tax provision if that provision has not actually gone into effect. The “tax” in question is the financial penalty exacted on those citizens who fail to buy a federally-approved health insurance policy.  The Obama administration has never quite decided whether the penalty is a tax: sometimes it is, and sometimes it isn’t.  Oh well, the fact is that the drafters of ACA decided to write the penalty provisions into the tax code, so there is at least an argument that it is a tax. 

Oddly enough, none of the parties at the Supreme Court next week are claiming that the  lawsuits are barred by the Anti-Injunction Act; not even the Obama administration which evidently, doesn’t want to start the week off by labeling the mandate as a “tax.”  But by Tuesday, the administration will have changed course and will be insisting that the mandate is a tax, in order to justify it under the “General Welfare” clause (more about that in a later post). 

In an earlier ACA decision, the Fourth Circuit concluded that the Anti-Injunction Act applies — and DC appellate judge Brett Kavanaugh came to the same conclusion in a concurring opinion on ACA – and so the Supreme Court justices decided that they would have to address the issue for the sake of completeness.  If the High Court rules that the Anti-Injunction Act applies, then all legal challenges to the individual mandate will have to be postponed until 2014, when the mandate and its penalty provision actually kick in.  This would be bad news indeed … unless of course we get a new president in January 2013, and that president gets to replace one or two liberal justices.

*i.e., the obligation of every citizen to obtain health insurance.

  1. Whiskey Sam

    Things like the Anti-Injuction Act are how bureaucracies entrench themselves and make it difficult, if not impossible, to ever remove them.  This is not representational democracy.  Why do we continue to tolerate it?

  2. Aaron Miller

    Forgive me for repeating myself, but these SCOTUS cases are distractions from the real issue. It doesn’t matter what Obamacare mandates. It is not valid law.

    No one read the bill in full before it was passed and signed. The process was blatantly undemocratic and contrary to the most fundamental principles of this republic. Is our government not founded on the idea that political power is derived from the consent of the governed? We the people do not authorize our representatives to vote on something without having even read and discussed it. A blind choice does not honor free will, which is the sole purpose of democracy.

    By questioning Obamacare’s Constitutionality on any other grounds, Republicans have surrendered this argument. They have agreed to abide by this farce unless SCOTUS advises them otherwise. It’s despicable.

  3. DocJay

    The SCOTUS decision has an impact insofar as the Holder version of American justice will pull any shenanigan needed to keep the ball rolling.  The legality is of minimal relevance to this administration and Holder will stonewall any changes or removals demanded, even by the SCOTUS.  

    Aaron Miller is right.  By fighting in this fashion we already surrendered.

  4. Adam Freedman
    C
    Aaron Miller: No one read the bill in full before it was passed and signed. The process was blatantly undemocratic and contrary to the most fundamental principles of this republic. 

    Aaron, I agree that the procedural shenanigans (eg, deem and pass) were despicable, and I’m surprised that those procedures haven’t been challenged in court, at least not that I’ve heard.  But I can’t go along with the statement that by challenging Obamacare on other grounds we have in any sense surrendered.  Pelosi’s and Reid’s procedural gimmicks, though deplorable, were not, I think, unconstitutional.  The Constitution says that each House of Congress can set its own rules, but does not prescribe the content of those rules.  I completely agree that representative government is premised on the idea that representatives will read the bills before them and consult the will of the people, but failing to do so does not violate the Constitution  In order to get the law tossed out you have to show that Congress exceeded its constitutional power, which is what the lawsuits are all about. 

  5. Aaron Miller
    Adam Freedman

    …. I completely agree that representative government is premised on the idea that representatives will read the bills before them and consult the will of the people, but failing to do so does not violate the Constitution  In order to get the law tossed out you have to show that Congress exceeded its constitutional power, which is what the lawsuits are all about.

    Exactly. That’s what lawsuits are for. That’s what courts are for. But this bill should have died long before courts became necessary.

    There is nothing in the Constitution about having to actually know what one is passing, irrespective of assessing the bill’s merit, because the Founders never dreamed politicians could seriously perform such an action! They might have included this notion of deliberation alongside our basic God-given rights as a “self-evident” truth if they thought for a moment American citizens would become such mindless sheep as to accept an unread bill as valid law.

    What is needed is for Republican politicians and every citizen to plainly say, “This is not law. We will not obey it.”

    The Constitution is a portrait of America, not America itself. Law is not society.

  6. KC Mulville
    Aaron Miller

    What is needed is for Republican politicians and every citizen to plainly say, “This is not law. We will not obey it.”

    I’m starting to imagine a media-worthy visual …

    Instead of bishops closing hospitals … let the hospitals stay open, but then refuse to pay the fine. And when the Obama Gang sends in lawyers (or dare we hope, police or soldiers) to arrest the bishops and nuns … won’t that be an attractive lead story? What a great viral video that’ll make, won’t it?

    I’m starting to re-think this whole You Tube / Facebook thing … 

  7. James Of England
    KC Mulville

    Aaron Miller

    What is needed is for Republican politicians and every citizen to plainly say, “This is not law. We will not obey it.”

    I’m starting to imagine a media-worthy visual …

    Instead of bishops closing hospitals … let the hospitals stay open, but then refuse to pay the fine. And when the Obama Gang sends in lawyers (or dare we hope, police or soldiers) to arrest the bishops and nuns … won’t that be an attractive lead story? What a great viral video that’ll make, won’t it?

    I’m starting to re-think this whole You Tube / Facebook thing …  · 58 minutes ago

    You don’t need to arrest people to seize their assets, and the Church has a ton of eminently seizeable  bank accounts.

  8. Adam Freedman
    C

    Wow. Is anybody actually planning to go uninsured as a means of protesting Obamacare?

  9. Aaron Miller

    One shouldn’t ditch their present insurance plan because of Obamacare. It’s not just insurance companies affected by the regulations, afterall. Every hospital and private practice will be affected. Every medical service is entangled with Obamacare, right? It certainly would be great if physicians and insurance providers refused to comply, and perhaps we will see that in devout Christian organizations as they are pressured into abortion and euthanasia.

    Ignore the bill entirely. Buy insurance or don’t buy insurance as if Obamacare never reared its ugly head. Just don’t comply with whatever fines or regulations if you have the option.

    This isn’t about healthcare or any particular branch of freedom. This is about politicians thinking they have the power to make you do anything they can dream up without need of authority or due process of law.

  10. KC Mulville
    Adam Freedman: Wow. Is anybody actually planning to go uninsured as a means of protesting Obamacare? 

    It’s a brave new world: it’s now a requirement of the law that we must  fund Sandra Fluke’s sex life. 

    Remember, the mandate to buy insurance is for everyone, not just for businesses. The mandate is for everyone. That gets lost in the shuffle here. 

    The religious institution debate is about a traditional exemption to the law. But individuals aren’t exempted. You and I aren’t exempted. We are required to have insurance, and the HHS mandate says that all plans must cover contraception and abortifacients. As it stands, with the mandate, the law says that you and I have to fund Sandra Fluke’s sex life. If Sandra Fluke wants to get an abortion, the Obama Administration says that you and I have to pay for it. 

  11. michael kelley
    Adam Freedman: Wow. Is anybody actually planning to go uninsured as a means of protesting Obamacare? · 14 hours ago

    Yes.

  12. DocJay

    How sure are you this is not rigged already?

  13. Lamont Cranston

    There is also a lot of insightful commentary at SCOTUSBlog, and I’m sure that The Volokh Conspiracy will have comments as well. 

    These will be three momentous days for reading particularly important tea leaves.

  14. Andrew

    The key element of freedom is choice. Our liberty depends on our right to choose whether or not to do something. If you choose not to pay for auto insurance, then you can choose not to buy a car. The majority of things that we feel infringed upon by the government are those things in which we have no choices. Obamacare is the pinnacle of our loss of freedom, because it destroys our ability to choose. There.

  15. Mel Foil

    Great. Let’s build the giant infrastructure first, and then decide later whether the project is constitutional. That’s the problem with government that’s the “Biggest Show on Earth”–you spend half your money just putting up the tents. I can tell them right now, I don’t like the show and I want my money back.

  16. Bereket Kelile

    If the Supreme Court decides that the Anti-Injunction Act applies and this gets postponed to 2014 couldn’t this be a motivator for our side in the election? We’ll have the incentive to get Obama replaced. Given that Obama hasn’t been celebrating the two-year anniversary maybe he doesn’t want to draw attention, much less run on it. 

  17. Adam Freedman
    C
    bereket kelile: If the Supreme Court decides that the Anti-Injunction Act applies and this gets postponed to 2014 couldn’t this be a motivator for our side in the election? We’ll have the incentive to get Obama replaced. Given that Obama hasn’t been celebrating the two-year anniversary maybe he doesn’t want to draw attention, much less run on it.  · 13 minutes ago

    That makes sense.  That might be the real reason the administration decided to drop the anti-injunction act argument.

  18. Adam Freedman
    C
    John Murdoch: There is also a lot of insightful commentary at SCOTUSBlog, and I’m sure that The Volokh Conspiracy will have comments as well. 

    These will be three momentous days for reading particularly important tea leaves. · 50 minutes ago

    Thanks John.  Those are both great sources.  I consult both sites often!

  19. James Gawron
    etoiledunord: Great. Let’s build the giant infrastructure first, and then decide later whether the project is constitutional. That’s the problem with government that’s the “Biggest Show on Earth”–you spend half your money just putting up the tents. I can tell them right now, I don’t like the show and I want my money back. · 30 minutes ago

    etoi,

    You and me both.

    1) Build a giant bureaucracy that raises premiums and bankrupts the country.

    2) Use the bureaucracy to destroy individual freedom.  Also, further increase premiums.

    3) Use the force of government to establish medical murder.

    4) Net Net: destroy the best Health Care System in the World.

    We need Gd to pay a visit to the Justices.  We need it right now.

    Regards,

    Jim

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