>By Steve M | Posted at March 26, 2012, 8:14 am |Sourced from No More Mister Nice Blog |
The health care bill hits the Supreme Court today — and please, Court-watchers, spare me all the thoughtful explanations of why Scalia or Alito or Roberts or some combination of these guys might vote to uphold the law (I’m talking to you, Nina Totenberg). This is for the Movement. This is for the Cause. It doesn’t matter that, say, Scalia upheld a reading of the Constitution’s commerce clause in a marijuana case that seems relevant to this case. Only one thing is relevant to this case for the Court’s Wingnut Four: the needs of movement conservatism.
It doesn’t help the Cause for the Supremes to strike down the entire law, because then it won’t be a rallying cry in November. Enough of the law has to be left in place to keep the GOP base’s blood boiling. But I think the Wingnut Four will want to get rid of some of it — Obama’s doing well in the polls against Romney, and Romney continues to be an inept candidate, so they won’t want to leave the law completely intact; mustn’t risk the possibility that it will survive to be successfully implemented (even though leaving it intact would really rally the base: “we need Supreme Court justices who are even more right-wing!”).
So I’m assuming the individual mandate will be declared unconstitutional. Now, I see that the Obama administration, somewhat surprisingly, has said that if the individual mandate is overturned, every provision of the law dependent on the mandate should also be overturned. It’s as if the administration is saying, “Well, if you hurt the law, you should do the decent thing and effectively kill it.” (And, of course, opponents of the law want the whole law overturned.)
Last week, in a New York Times op-ed, Abbe Gluck and Michael Graetz discussed this:
Both the Obama administration and the law’s opponents have one argument in common. They express concern about what might happen to health insurance markets if the mandate is severed from the statute but the requirements that insurance companies cover sick patients and don’t charge them higher rates remain. If healthy people do not have to buy insurance and insurance companies are forced to cover the sick, they warn, insurance would be far more expensive.
So that’s what I think the Wingnut Four will want to do: make mischief. They’ll leave the law bleeding but able to survive — but likely to be more expensive. Perfect! See? It’s evil, wallet-snatching Big Government!
Under this scenario, Congress would face tremendous pressure to come up with an alternative to the mandate to encourage healthy people to buy health insurance.
Ha – this Congress? Or even the next one? Feel pressure to salvage the law? This is a perfect recipe for creating anti-Obama chaos, while leaving enough of the law intact that the rubes will want to kill it altogether.
Ah, but there are only four apparatchik wing-nuts on the Court — what if they can’t get a majority? Well, that’s why we have today’s consideration of the notion that the law can’t even be challenged at all yet, because a nineteenth-century statute says you can’t challenge a tax until someone has actually paid it. (The question under consideration is whether the health care law’s fees are a tax for the purposes of that statute.) I find this curious:
Since no party in the Supreme Court litigation has claimed that the act applies, the court asked an independent lawyer to argue the position that the court cannot rule on the mandate’s constitutionality until the financial penalties for failing to obtain insurance go into effect in 2015.
Did you follow that — “no party in the Supreme Court litigation has claimed that the [nineteenth-century] act applies”? The Supremes went out and forced this into the case. Why? Because the Wingnut Four feel they can’t risk taking the health care law up if there’s even the slightest possibility that it will emerge free and clear and constitutional. So if they can’t get a useful idiot to join them in an election-year mugging of Obama on any provision, they’ll scrape together five votes for a punt based on this nineteenth-century law, and leave the health care act in legal limbo — not approved, not rejected.
This is going to be a mugging. This is not going to be a proud moment for the Court. The Wingnut Four don’t care.
By Steve M | Sourced from No More Mister Nice Blog |Posted at March 26, 2012, 8:14 am
[important]Court signals it will decide constitutionality of health care mandate[/important]
[notice]AUDIO ONLY: The Supreme Court takes up the fate of the Obama administration’s overhaul of the nation’s health care system. Listen to the entire oral arguments from day one.[/notice]
Updated at 3:10 pm ET: After the first day of oral arguments in challenges to the landmark 2010 health care law, it seems clear that Supreme Court will not let a procedural tax issue stand in the way of deciding the constitutionality of the law.
“If there were any members of the court who were looking for an off ramp – who did not want to decide this case now during an election year, this would have been the way to go,” said NBC’s Pete Williams after hearing the first day’s arguments. But “none of them seem to want to take that,” he said.
At issue Monday was a law called the Anti-Injunction Act. Does that law require that those who challenge the penalty for failing to buy insurance actually pay the penalty first? That won’t occur until 2015, after the insurance purchase requirement takes effect.
The question hinged on the justices accepting the contention that the penalty is effectively a tax.
AUDIO ONLY: The Supreme Court takes up the fate of the Obama administration’s overhaul of the nation’s health care system. Listen to the entire oral arguments from day one.
After hearing Monday’s argument, Williams reported that “there didn’t seem to be a single member of the Supreme Court that bought that argument.”
“I don’t believe there’s a single justice on the court who believes that it’s a tax. End of that question. So we’re obviously going to go on to the main event which is the individual mandate which will be argued tomorrow,” Williams said.
Monday’s argument was the prelude for the main event: Tuesday’s two hours of argument over whether Congress has the power to require that almost every American purchase health insurance.
Solicitor General Donald Verrilli told the justices, “This case presents issues of great moment, and the Anti-Injunction Act does not bar the Court’s consideration of those issues.”
One justice, Samuel Alito, focused on the apparent inconsistency in the government’s argument that the penalty is not a tax, under the terms of the Anti-Injunction Act — and yet the government also will claim in Tuesday’s oral argument that when Congress created the individual mandate and the penalty for failing to buy insurance, it was acting under its constitutional power to tax.
This courtroom sketch by Art Lien shows Solicitor General Donald Verrilli speaking to Justice Antonin Scalia on March 26, 2012 as he argues his case before the Supreme Court.
Verrilli said, “Congress has authority under the taxing power to enact a measure not labeled as a tax … .”
In a question to Verrilli, Alito said, “Today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?”
Verrilli replied, ”No, Justice Alito, but the Court has held… that something can be a constitutional exercise of the taxing power whether or not it is called a tax.”
He said, “the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today. Tomorrow the question is whether Congress has the authority under the taxing power to enact it” and the precise words used in the law don’t have a crucial effect on that question.
At least two justices, Stephen Breyer and Ruth Bader Ginsburg, seemed to accept the government’s contention that the penalty was not a tax, with Ginsburg saying “this is not a revenue-raising measure, because, if it’s successful, they won’t — nobody will pay the penalty and there will be no revenue to raise”
Since the plaintiffs challenging the ACA had not made the Anti-Injunction Act argument, the justices appointed lawyer Robert Long to argue for the position that no one can file suit against the ACA’s individual insurance mandate until after the penalty on those who fail to buy insurance has been assessed.
This courtroom sketch by Art Lien shows attorney Robert A. Long speaking March 26, 2012 as he argues his case before the Supreme Court.
As soon as President Barack Obama signed the ACA into law, several states and private organization filed suits to overturn it, arguing that the Constitution gave Congress no power to force people to buy insurance.
Long pointed out in his brief that the text of the ACA says the penalty imposed on people who don’t purchase health insurance shall be “assessed and collected in the same manner as taxes” – so it is effectively a tax.
Long also said if Congress had wanted to create an exception to the Anti-Injunction Act in this case it would have done so when it passed the ACA in 2010.
He argued that for the Supreme Court to decide now on the constitutionality of the ACA “would be contrary to the policy that courts avoid deciding constitutional issues unless it is necessary to so do.”
And it would premature, he said, for the court to act since it’s possible that Congress “could amend or repeal the Affordable Care Act at some point before penalties are assessed and collected, beginning in 2015. An amendment (to the law) could avoid the need for this Court to decide the constitutional issue presented in this case.”
But despite those arguments there’s tremendous pressure on the high court to resolve the uncertainty over the health care overhaul now – since many of the provisions of the law are interrelated and the court itself has created the expectation that it will finally settle the constitutional issue.
Arguing the case on Monday for 90 minutes were Long, Verrilli, and former Assistant Attorney General Gregory Katsas, now in private practice, representing the state of Florida and other states and the National Federation of Independent Business.
NBC’s Pete Williams contributed to this report.