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Rare is the occasion when the nine justices of the U ( ** )


Rare is the occasion when the nine justices of the U.S. Supreme Court gather
to hear three days of arguments, and rarer still is when it is for a case like
Obamacare — one that cuts to the core of the Constitution and whose outcome
could fundamentally alter the role of the federal government and its power over
the people. But today the Court will do just that when it open its doors and
begins weighing the arguments on the constitutionality of President Barack
Obama’s seminal health care law.

Were the American people to vote on the issue, they would fall decidedly
against Obamacare, as recent polls have shown. But for the Court, the decision
is not as cut and dried as an up or down vote, but one that involves the
interplay of a series of issues raised by those who are challenging Obamacare
— more than half the States of the Union and a collection of interested
organizations and private parties — and those brought by the Obama
Administration, which is defending the law. And they come to the Supreme Court
after conflicting appellate court rulings which have left undecided the
question of whether Obamacare is permissible under the Constitution.

The central issue before the Court is whether Congress has the power under
the Commerce Clause and the Necessary and Proper Clause to impose the
individual mandate on the American people, forcing them to buy health insurance
or pay a penalty. If the Court holds that Congress was outside the bounds of
its authority, it can strike down the individual mandate, leaving the justices
to then decide whether all or part of Obamacare should fall along with it.

If the Court upholds the mandate, America will be in the same
position it finds itself today — facing a law that vests untold power and
resources in the hands of the federal government, that transfers health care
decision making from individuals to unelected bureaucrats, and that increases
costs while decreasing access. In short, America‘s health care crisis will
get worse, not better, and future generations will be left paying the tab.
What’s more, if the Court allows the individual mandate to stand, it will
unhook Congress from its Constitutional leash, empowering it to regulate
commerce and individual behavior in new ways never before imaginable.

There are other issues, too, besides the individual mandate. Even before the
Court reaches that subject, it must broach the issue of the Anti-Injunction
Act, a 145-year-old federal tax law which could bar the Court from even hearing
a challenge to the individual mandate. Under that law, one cannot sue over a
tax until they have paid it. If the penalty for violating Obamacare’s
individual mandate is considered a tax under that law, then the challenge could
be brought at this time since the penalty has not yet taken effect. Obamacare’s
challengers and even the Obama Administration agree that the Anti-Injunction
Act shouldn’t prevent the Court from hearing the case, but the issue will still
be heard, and some think that the Court could rely on the Act as a way of
avoiding having to answer the question of whether the mandate is

If the Court finds the Anti-Injunction Act doesn’t apply, it will move on to
the individual mandate. Its decision on that issue brings with it a whole other
set of problems — namely, if the Court finds that the mandate is
unconstitutional, it must next decide the issue of severability — whether
Obamacare will operate as Congress intended if it is stripped of the mandate,
or whether all or parts of the law must be struck down with the mandate. If the
Court finds that the mandate is severable, the Court can strike it down and
leave it up to Congress to clean up what’s left, or, as the Obama
administration has recommended, it can strike down the mandate and related
provisions of the law that depend on it. Finally, if the justices find that the
mandate is not severable, then it will throw out all of Obamacare, and it will
again be up to Congress to enact real market-based health care reforms that
bring down costs while increasing access to care.

There is another issue, too, tied to Obamacare, and that has to do with
Congress’s decision to impose new requirements on states forcing them to expand
the Medicaid program and abide by the federal government’s conditions, leaving
them to shoulder much of the costs while operating Medicaid according to
Washington’s whims. If the states don’t comply, they could lose all Medicaid
funding, putting them in an untenable position in which both their autonomy and
their sovereignty collapse under Obamacare’s weight. It is up to the Court to
decide whether Congress overstepped its bounds.

America waits for the Supreme Court to weigh the facts and the law, to consider the
precedents and the policy, and to issue a decision that will have implications
far into the future. Will Congress be limited by the Constitution, or will its
authority expand beyond the limits that the Founders intended? Will Americans’
liberties stand? Will Obamacare fall? No matter the outcome of the Court’s
ruling in June, Congress can and should act now to repeal Obamacare and rid the
land of this intolerable act.


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