Monday, November 14, 2011

SCOTUS' Look at ObozoCare

Followup material from SCOTUSblog. to divide up power between national and state governments.   The health care cases the Court promised to review involve nothing less than a choice between an ever-expanding social safety net, spreading out in federal law, and a multitude of more localized decisions by state government and the private economy.

How so?

...What Congress intended in this new law was a fundamental alteration of the way America pays for health care, and a marked expansion of eligibility for insurance so that one does not have to pay medical bills out of pocket, or have them covered by someone else’s charity.   The core issue the Justices will decide is whether Congress had authority to do that, under three clauses in the Constitution’s Article I: the Commerce Clause, the General Welfare Clause, and the Spending Power Clause.

Under Commerce and GW, the question of "the mandate."

Next:  severability.

...If the insurance mandate and its attached penalty are nullified by the Court, the Justices would then be faced with the next most important question they granted: is the mandate so vital to the rest of the law that none of it — or some parts of it, at least — cannot survive constitutionally?

...But whether the Court actually will decide the constitutionality of the mandate, and the allied question of what happens if the mandate is nullified, depends upon whether the courts — including the Supreme Court — have the authority to decide those issues.  That will turn on the answer the Court provides to another vital question it accepted for review: were the states that challenged the mandate barred from filing their court challenge by the federal Anti-Injunction Act?

Under which act, one may object to a tax, but only AFTER paying it.

...the Court’s order on the Anti-Injunction Act appeared to embrace the somewhat separate questions of whether that Act applies only to private challengers, or also to states as challengers.

Kinda smells 10th-y, doesn't it?  More of the same odor here:

...Also potentially lurking in the Court’s review is the question of whether it or any court had jurisdiction to hear the states’ challenge to the mandate, because it could be argued that the states lacked “standing” to contest the insurance mandate.

As to the "Spending" controversy:

...In their petition, the states put the question this way: “Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces states into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress’s spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?

It's still NOT 'more important' than Roe.  But it's very important.

HT:  McCain


neomom said...

This could go either way, and it does not warm the cockles of my heart to know that it will mostly hinge on Anthony Kennedy...

Something to remember as we look at nominees for Prez... Will they pick a Roberts/Scalia/Thomas or will they pick a Kennedy?

Jim said...

Many observers believe that based on precedent and their prior legal opinions, Roberts and Scalia are likely to uphold the mandate. I don't think this is necessarily a liberal vs. conservative issue.

neomom said...

Which is why I say mostly... But from what I have read, Scalia/Alito are unknowns, Thomas is almost certainly a vote to strike it down. Roberts seems to like the "Necessary and Proper" clause and Kennedy is Kennedy...

I do hope however that all of them take a moment to consider that if they let Congress force us to purchase something, simply all constraints on the Federal Government are gone.

Next up - eat your broccoli, because its good for you, and society needs healthy people to keep the costs of healthcare down.