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Tuesday, January 31, 2012

OBAMACARE & THE SUPREME COURT, A PRIMER

(Click for AUDIO VERSION)

Mark the dates of March 26-28, 2012 on your calendars as we are about to witness one of the most titanic legal struggles in this century, the fight over the Patient Protection and Affordable Care Act (ACA), better known as "Obamacare," which went into effect March 23rd, 2010. Actually, we won't be able to see much of anything as cameras are not allowed in the Supreme Court proceedings. However, I can assure you it will be extensively covered by the media as this is a major constitutional issue. And you better pay attention as the decisions made here will have long term implications on our country.

In reality, there are three separate cases which will be heard individually, which is somewhat strange as they are all closely related. The stakes for this are high too as it will pit the President and the Democrats, the proponents of the bill, against the Republicans, the bill's opponents. The outcome will undoubtedly play a role in the outcome of the November elections. Nonetheless, both sides will want to make sure "their people" are present on the bench, both liberal and conservative. Three justices may have to be recused though:

Justice Sonia Sotomayor worked for the president and helped write the legal strategy used for the court challenges. In other words, she is already intimate with how arguments will be refuted by the president's people.

Justice Elena Kagan is a long-time cheerleader of the bill and served as Solicitor General during the Congressional health care debate.

Justice Clarence Thomas' wife is an active opponent of the bill but he, himself, has no direct involvement.

Of the three, Sotomayor and Kagan are more intimate with the bill and played an active roll in its passage. Nonetheless, it is doubtful any of the judges will recuse themselves as the stakes are too high.

Representing the president's side are the departments of Health and Human Services, Treasury, and Labor, along with their Secretaries, collectively "the government."

Their opponents are 26 states with Florida at the forefront, private individuals Mary Brown and Kaj Ahlburg, and the National Federation of Independent Business (“NFIB”). Both Ahlburg and Brown are fighting for the right to remain uninsured.

The three cases include:

To be argued March 26-27 -
Department of Health and Human Services, et al. vs. the State of Florida, et al. (11-398)

Basically, the government is trying to appeal a district court's ruling that the individual mandate (to purchase insurance) is unconstitutional and that it cannot be singularly severed from the act.

To be argued on March 28th -
National Federation of Independent Business, et al. vs. Kathleen Sebelius, Secretary of Health and Human Services, et al. (11-393)

Is intended to reverse the Eleventh Circuit’s judgment on the severability issue where they concluded the individual mandate can be severed from the remainder of the act.

The State of Florida, et al. vs. the Department of Health and Human Services, et al. (11-400)

First, questioning Congress's authority to expand the eligibility for Medicaid of individuals up to 133% above the poverty level; Second, questioning the constitutionality of establishing penalties for large employers that do not offer adequate health insurance coverage to full-time employees, and; Third, whether other provisions of the Act could be severed from the Act’s minimum coverage provision if that provision were found to be unconstitutional.

In a nutshell, the case needs to answer the following questions:

1. Does the Commerce Clause (Article I Section 8 Clause 3 of the Constitution) grant Congress the power to require individuals to maintain a minimum level of health insurance or pay a tax penalty?

2. Did Congress exceed its enumerated powers and violate principles of federalism when it pressured States into accepting conditions that Congress could not impose directly by threatening to withhold all federal funding under Medicaid, the single largest grant-in-aid program?

3. Is the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act barred by the Anti-Injunction Act, 2 U.S.C. 7421(a)?

4. Is the individual mandate severable from the ACA?
(Source: Oyez)

My concern is how Obamacare, if sustained, will affect the sheer nature of capitalism by forcing people to purchase products they do not necessarily want. It is also an expression of more federal control over the states by withholding Medicaid. In other words, who should have more authority, the federal government or the states?

Regardless of the decision, it will be a "Win-Win" decision for the Republicans. If the Supreme Court overturns Obamacare, it will be a major defeat for the president and will mean we have to go back to the drawing board. However, if the Supreme Court sustains Obamacare, it will create a major uproar that will likely drive the Democrats out of office. Either way, the Republicans win.

Fasten your seat belts, it is going to be a bumpy ride.

Keep the Faith!

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Tim Bryce is a writer and the Managing Director of M. Bryce & Associates (MBA) of Palm Harbor, Florida and has over 30 years of experience in the management consulting field. He can be reached at timb001@phmainstreet.com

For Tim's columns, see:
http://www.phmainstreet.com/timbryce.htm

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Copyright © 2012 by Tim Bryce. All rights reserved.