“Obamacare’s” Big Week

Our friends at the Washington Post report:

The Supreme Court began its constitutional review of the health-care overhaul law Monday with a fundamental question: Is the court barred from making such a decision at this time?

After decisions on other cases were announced, the justices started hearing 90 minutes of argument about whether an obscure 19th-century law – the Anti-Injunction Act – means that the court cannot pass judgment on the law until its key provisions go into effect in 2014.

It is the rare issue on which both sides agree: the Obama administration lawyers and those representing the states and private organization challenging the new law argue that the Supreme Court should decide the constitutional question now.

The question being argued today is just a preliminary match to the main event, of course:

At the heart of the Patient Protection and Affordable Care Act is the requirement that almost all Americans obtain health insurance by 2014 or pay a penalty.

But first they’ve got to figure out of they can do that before someone actually has to pay that penalty. Since both sides agree they would rather not wait until 2015, we assume the Supreme Court will agree that the penalty isn’t a “tax” in the formal sense. This concession to expediency, largely by the Obama administration who could have argued that nothing can be challenged until such a penalty had actually been levied (that is, well after re-election), might have repercussions down the road–but the administration’s decision to press for a Supreme Court decision is said to reflect their confidence that the court won’t upend decades of Commerce Clause precedent to strike an admittedly massive blow against an incumbent President in an election year.

Opponents including Colorado Attorney General John Suthers very much hope they would do that–and would happily pick up the pieces of federal law later.

Safe to say, the immediate political stakes are rarely this high. A poll follows.

[poll id=”1445″]

29 Community Comments, Facebook Comments

  1. PitaPita says:

    I think they will tackle it.  

    I’m still mulling the opinion of a conservative judge from the same link to the above I posted in the open thread.

    Besides the 4th Circuit panel, the view that the Anti-Injunction Act forecloses a ruling at this time was endorsed by Circuit Judge Brett M. Kavanaugh, an influential conservative member of the U.S. Court of Appeals for the D.C. Circuit.

  2. cunninjo says:

    I think that the administration’s reluctance to call the mandate a “tax” is a big gamble. I personally think it IS a tax and is no different than the thousands of other tax incentives that exist out there. I’ve always thought they would have a much stronger argument by labeling it a tax incentive. But, not doing so forces them to rely on previous questionable precedent like the California marijuana decision that gave the DEA authority to enforce federal drug laws on medical marijuana users who were growing their own marijuana under state law.  

    • ajb says:

      I don’t see the logic in that.

      Call it what it is: a penalty. We already have many penalties for inaction – just ask the IRS.

      • cunninjo says:

        It is a “penalty” imposed on your tax return. In other words, if you don’t purchase adequate insurance then you will pay more to the government than someone who does have insurance. Similarly, if I don’t buy a Chevy Volt then I will pay more in taxes than someone who does buy one.

        If the law was reworded to say that all income taxes are going up in the amount of the “inactivity penalty”, but taxpayers with adequate health insurance get an equal tax credit, how would the practicality of the law change in any way? So long as you are giving a tax benefit to a select group of people, you are simultaneously assessing a tax penalty on others.

        Call it whatever you want – a tax credit, tax fee, tax penalty, tax increase, tax reduction, etc. Politicians come up with clever names for their own self interest, but that doesn’t change the fact that every dollar the IRS collects, now matter the reason it is collected, is constitutionally grounded in Congress’ authority to levy taxes.  

        • BlueCat says:

          spokesperson for this or that think tank agree with you.  Couched in terms of tax policy it wouldn’t even be subject to a Supreme Court ruling.  We’ll see how it goes. I lean toward “no” on the poll question and so voted but wouldn’t be shocked by a different outcome.

          And while I prefer Obamacare to nothing and to anything we could expect from today’s GOP, in spite of the fact that it’s based on what many in the GOP were themselves proposing 15 minutes before Obama copied it from the Romney model, I have always felt that a mandate without the availability of a quality, affordable public option is essentially unjust.  Also have always believed that the Obama administration’s initial pre-negotiation retreat to the point of not even allowing a single public option/single payer voice a seat at the table, even for bargaining purposes, was a horrible unforced error.

          Negotiation 101:  Your starting point is never the most you think you are likely get. Both sides start by asking for considerably more than what they hope to get and bargain from there.  

    • ArapaGOPArapaGOP says:

      But on the road to serfdom, sometimes one must take chances.

      • AristotleAristotle says:

        then it’s only because Republicans are in the service of the lords of the manor.

      • ParkHill says:

        Umm, maybe you have a point. The insurance companies are like feudal lords, and we consumers are the peons.

        I know Republicans oppose Universal Health Insurance, but for once your sarcasm subconsciously hit the nail on the head.

        Guaranteed Health Insurance would be easier and cheaper if it were merely extending Medicare to everybody and funding it through taxes. That would also get rid of those feudal insurance companies who dictate what services we get or don’t get.

  3. ArapaGOPArapaGOP says:

    Obama’s messengers are already spreading a “we never needed the mandate” story line. They are terrified that they are doomed before the Court.

    • and leave the rest of the law intact, go for it.  The insurance companies will be out of business in a few years because they’ll still need to cover pre-existing conditions and not-quite-Medicare age older people, and we’ll have Medicare for all.

      But don’t accuse Obama of even hinting he’s opposed to the part of the plan that Mitt Romney says (or at least used to say in 2009) makes it all work.

  4. … and waited to hear the opening arguments today.

    First, it doesn’t look like the justices are interested in taking on the Anti-Injunction Act argument.  They’ll hear the case and rule on it.

    Second, reading at least one tea leaf from today’s arguments, Chief Justice Roberts sounds like he’s taking the mandate as an enforcement penalty – i.e. like a fine for not filing some required paperwork or failing to follow some regulation.  That would fall within well-established government functions, which would make the ruling at least 6-3 to uphold.  It also goes back to the first point – that the AIA doesn’t apply as far as Roberts is concerned, and probably won’t with a court majority, either.

  5. …didn’t seem enamored with the government mandating an individual to buy healthcare insurance.


    The Reagan-appointee argued the court has a “very heavy burden of justification” for requiring that people purchase insurance. He also indentified the insurance mandate is the first time the government has used its regulatory powers to force citizens to buy a product.

    “That changes the relationship of the federal government to the individual in a very fundamental way,” Kennedy said.

    I couldn’t agree with him more!

    In 1973, liberals told the American people that Roe v. Wade would guarantee that every child born would be a “wanted” child.  Without a doubt, that has proven to be a load of crap… as is the frightening precedent the Affordable Health Care Law would set.  The government could then decide that everyone needed to drive a vehicle that gets 40 mpg, regardless of how expensive it was, or how such a vehicle might not be practical for everyone’s needs. Enough with the government telling us what we have to do!  They do it too too much already.

    Besides, if I still can’t afford health insurance under this proposed law, what makes the government think I can come up with the money to pay the fine?  Keep in mind that the income tax was originally just supposed to impact the wealthy.  We can see how that all worked out.  

    Health care reform is definitely needed, but this hastily put together and quickly voted on law is not the way to go.  If Medicare, Medicaid, or Social Security was shoved down the nation’s throat by one political party, the way this law was, then those programs would have disappeared in a matter of years.

    • Ralphie says:

      It’s the Republican Plan.  A giveaway to the insurance companies.  That’s why it sucks.

      Single-payer would have been so much better.

    • Fidel's dirt nap says:

      ” Health care reform is definitely needed, but this hastily put together and quickly voted on law is not the way to go. ”

      Nobody really believes the we need reform just not this time argument anymore.  Its getting really, really stale.

    • The PPACA was in pretty much its final form (tweaks aside) before the summer Congressional break.  If you’ll recall, Republicans took the entire summer and some of the fall paying for buses for the Tea Party movement, going around lying about the bill’s provisions.

      And then they came back and had an extensive debate on it before actually taking some votes.

      Nevermind that the ACA is very similar to the plan Republicans proposed back in 1993, and had the support of current Republican presidential frontrunner Mitt Romney.

    • ParkHill says:

      So, Registered Republican can’t stand Medicare, Medicaid and Social Security. You’r either off script or you are a Liberal plant trying to wreck the Republican brand. I mean, you’re never supposed to admit you want to take away social security.

      • … drawn the conclusion you did, ParkHill.  Nowhere in my post did I say I “can’t stand Medicare, Medicaid, and Social Security.”  

        What I did say is, “If Medicare, Medicaid, or Social Security was shoved down the nation’s throat by one political party, the way this law was, then those programs would have disappeared in a matter of years.”

        I don’t deny the value of Medicare, Medicaid, and Social Security.  The point was IF they had been passed by just one party (in 1935 for Social Security, 1965 for Medicare and Medicaid), they probably would have been eviscerated by the other party.  Obviously, FDR and Lyndon Johnson were more politically astute than the current White House occupant.

        Let’s face it… AHCA was not put together very well.  The portion dealing with long term care fell flat on its face.  Businesses are leery of the proposal and, therefore, are very tentative about hiring too many people.


        Congressional Democrats shot down every GOP amendment… when they would allow them to be brought to the floor.  The uncertainty of this law is largely due why — after two years — the American people are still, at best, 50-50 on the issue.  The Dems’ messaging on this issue couldn’t have been worse.  

  6. “Americans remain overwhelmingly against requiring individuals to purchase health insurance, but they divide in half about the health care law that President Obama signed in 2010, according to the latest United Technologies/National Journal Congressional Connection Poll.”


    Two years to convince the American public and this is the best Democrats can do?  Voters are getting tired of Democratic politicians telling them what is best for them… whether it be Obamacare or TABOR.    

    • Two years of pundits and talking heads trying to convince the American public that this plan, which Republicans originated way back in 1993, was the worst thing to ever happen to the American people.

      • While the Republicans may have initially come up with this plan in 1993, they abandoned it because of the constitutionality questions.  While it is permissible for any, or all, of the 50 states to do it (i.e. Romneycare in Massachusetts), it is something else if the federal government tries to impose it nationwide.  To do so, would end the very concept of federalism.  

    • ParkHill says:

      Half the opposition to the health care act comes from people who believe it does’t go far enough.

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