Supreme Court begins to hear oral arguments on Obamacare today
Three days of oral arguments is a long time in SCOTUS-land, indicating that the Court considers the issues in the HCR case incredibly important. And yet this hasn’t stopped some liberal commentators (see this, for example) from preemptively suggesting that the arguments of the opposition are ludicrously weak, and that therefore any ruling that might go against the health care reform law will be obviously biased and politically motivated.
Liberal Ezra Klein, though, has done a pretty good job of simply laying out the main issues to be discussed in the oral arguments. In summary, we’ve got:
(1) Anti-Injunction Act: can the Court rule on the case before 2015, when the penalties in question goes into effect?
(2) Individual mandate: is it permissible under the Commerce Clause?
(3) Severability: if the mandate is found unconstitutional does the entire HCR act have to go as well?
(4) Medicaid expansion: can the bill force the states to expand Medicaid in a manner they say is too economically onerous?
That’s a simplification, of course, but it’s the basic idea. Real SCOTUS junkies can hear oral arguments and read transcripts here—not live but pretty quickly after they occur. And SCOTUSblog has a lot of fast-breaking information on what’s happening, and all sorts of links.
The overarching issue is the power of the federal government:
“This case will be a tremendous opportunity to reaffirm that Congress is a legislature of limited powers,” said Randy Barnett, a Georgetown University law professor who is helping the challengers.
Harvard University law professor Laurence Tribe…said opponents are asking the court to erase the flexibility the Constitution’s framers gave Congress. If the court struck down Mr. Obama’s law, said Mr. Tribe, it would implicate “virtually every major piece of federal legislation enacted over the past several decades, and many laws now in the pipeline”””including proposals favored by conservatives.
To libertarians and many conservatives, that latter point is a feature, not a bug.
This case is going to be a turning point, one way or the other. It is our Dred Scott decision.
Occam’s Beard: I agree that it probably will be. But there are ways the Justices can evade that. Obviously, if they decide they can’t hear it till 2015, they kick the can down the road. I don’t think that will happen, but it’s possible. Or, whatever ruling they hand down can be made very very narrow, so that it only applies to Obamacare or situations very close to it. That’s more possible.
Seems to me the mandate is unconstitutional, but I’m not sure a ruling to that effect would take down the whole ACA. If the SC held that the gov’t couldn’t require folks to buy health insurance, this would still leave the vast majority of people WANTING to buy health insurance (some of whom would qualify for Obamacare’s subsideis). As a practical matter and in the short term, all you may wind up with is a small minority of people (5-10%?) opting out of buying a policy.
Now, in theory, those people could wait to get sick, and then buy coverage, which could not be denied on the basis of preexisting conditions. But it might take a while for a significant portion of consumers to adopt that as an actual strategy. Meanwhile, the gov’t could jack up rates and/or slash coverage on the 90-95% who kept their coverage in place. Bottom line: there’d be an insurance death spriral, but it may take a few years for the system to actually crash for lack of a mandate.
neo, that’s true, they might kick the can down the road, but in that respect too it’ll be like Dred Scott, which effectively did the same thing (IIRC) by putting off resolution of the slavery question.
Here the issue – no less contentious, and in many ways related to the slavery issue – is the scope of the power of the Federal government, except then it was vis a vis the states, while now it is with respect to individuals.
I truly fear for my country. It’s hard to see how this will all end well.
Thanks to C-Span radio, I listened to the whole thing. It is extremely difficult to follow the Supreme’s questions and the lawyers’ answers without serious knowledge of prior cases and rulings, including the Reed-Elsevier case, which revolved around a copyright matter.
It is also hard, I found, to get a sense of how a Supreme is inclined to vote. All asked strongly critical questions of both sides, save Thomas, who is as a rule silent during these oral arguements. Bader-Ginsburg seems in her dotage, but not to worry, she’ll be there until she decides to quit.
Then I heard the AP’s take, which reported only that 8 Supremes asked questions, did not even report about what the subject of today’s argument was, then cut to the raucously audible pro-Obamacare folks demonstrating outside with their valazuelas or whatever those stupid plastic horns are called, as if that were newsworthy.
If the court struck down Mr. Obama’s law, said Mr. Tribe, it would implicate “virtually every major piece of federal legislation enacted over the past several decades, and many laws now in the pipeline”
He says that like it’s a bad thing?
Conrad:
That’s the same % of population-uninsured- that was the excuse to do this whole thing, At a cost of (CBO current estimate, and you know what that’s worth) $1.7trillion over next 10 yrs. Betcha we’ll still have the same % uninsured when the 10 year dust settles.
The Feds determined in 1965, when Medicare was enacted, that it would cost $9bill over the 1st 10 yrs. They were off 1000%. Love that Central Planning.
If re-elected, expect Obama’s 1st Five Year Plan in 2013, approved by his Politburo of course..