Tuesday, March 20, 2012

Supreme Court options in ObamaCare case

The most-awaited Supreme Court decision this term will be on the constitutionality of ObamaCare. The primary issue is whether or not Congress has power to enact the provision requiring all (who are deemed to be able to afford it) to purchase health insurance from a private company. The government argues that such power flows from Congress' power to regulate interstate commerce (cl. 3) and the necessary and proper (cl. 18) clauses in Art. I sec. 8 of the Constitution. Those who do not purchase such insurance will pay a monetary penalty. The penalty is not a "tax" which perhaps could be justified under Congress' Art. I sec. power to lay and collect taxes (cl. 1).
Opponents argue that the Constitution was never intended to give the federal government such wide-ranging powers, and that some of these issues were intended to be left to the states under the 10th Amendment. Given the precedents and the composition of the Court, the former argument has a chance the latter has little chance. The 4 knee-jerk conservatives will most likely vote to strike down all or parts of the law. The 4 knee-jerk liberals will vote to uphold everything and, as is often the case in the controversial battles, the decision will be made by Justice Kennedy.
Like the 2012 election, this decision will be crucial in determining whether the U.S. moves toward European-style socialism and reduced freedoms or maintains some semblance of a regulated but still market-driven economy and being, overall, the freest society on the planet.

According to Findlaw, the Court has six options.


  1. As far as I'm concerned, "Obamacare" is just another violation and subversion of the country's "dual"- federalism. Using the supremacy clause to justify such a flagrant overreach into states' sovereign affairs is a tyrannical abuse of Article VI, section 2. Later adjectives describing this unique governmental concept simply corrupt and pervert our founders' careful design.

    Reference: Loyola M. Trojan horse: federal manipulation of state governments and the supreme court's emerging doctrine of federalism. Texas review of law and politics. 2011; Vol. 16, No 1; 113-153.

  2. 44: Thanks for the comment and link. Although one can argue that health care is an issue assigned the the states under the 10th Amendment and not delegated to the feds, medical care is an interstate business and there are interstate health issues, e.g. communicable diseases. Thus one can argue that ObamaCare can be justified under Congress' power to regulate interstate commerce plus the necessary and proper clause (Art I.). On the other hand, if the individual mandate and other provisions are upheld, this arguably gives the federal government unlimited Art I powers, a concept that the Founding Fathers rejected. Stay tuned!

  3. Ray said " ... there are interstate health issues, e.g. communicable diseases. Thus one can argue that ObamaCare can be justified under Congress' ... necessary and proper clause ...".

    Healthcare providers are licensed by their respective states, with some states forming reciprocity compacts. That's how to properly handle necessary interstate medical issues. Bottom line, the federal government has unnecessarily and improperly exceeded their enumerated power. If SCOTUS decides otherwise, we might as well trash the entire Bill of Rights as it no longer serves any real purpose.