The Supreme Court has agreed to hear the constitutional challenges to Obamacare. Its ruling, expected in the summer of 2012, is sure to be historic. It was inevitable that Obamacare would end up in the Supreme Court given that the law’s view of the role of the federal government that is so large, all-encompassing, and novel. There are clear constitutional issues that must be decided.
Although numerous suits have been filed over the past twenty months against the law, there are five petitions the Supreme Court must decide upon that have arisen from the appellate courts. The most important appellate opinions, in my opinion, are the ones coming out of the 11th circuit court (ruling was unconstitutional and case was brought by 26 states), and the D.C. Court of Appeals (ruling was constitutional and it included the opinion of one prominent and highly regarded conservative judge appointed by President Reagan).
There are many issues for the Supreme Court to consider, but the main issue centers on the allowable powers of the federal government under the Commerce Clause of the Constitution, and specifically whether a federal law compelling a private action (buying health insurance or any other type of purchase for that matter) is within the power of the federal government. This is the question that derives from the so-called “individual mandate”.
If the individual mandate is ruled not constitutional, there is also the issue of whether that decision invalidates the entire law, or whether the rest of the law can still stand. It is also disputed as to whether the “penalty” for not purchasing health insurance is a “penalty fee” or a tax. So far, all the lower court decisions have said it is not a tax.
An important question, yet to be answered, is whether Justice Elena Kagan may participate in this ruling. She served as Solicitation General at the Justice Department, working for the Obama Administration, at the time the law was passed, and likely participated in, or heard about the legal issues involved, at that time. Also, just last week emails surfaced showing that Justice Kagan already had formed an opinion about the law before it passed, and was clearly positively excited about its impending passage in March 2010. Kagan should recuse herself.
More than any Supreme Court decision I can recall in the last century (with the possible exception of Brown vs. Board of Education), this decision about the constitutionality of Obamacare and the limits of federal power will have a historic impact on America, for better or worse. It is my sincere hope that given the terrible financial straits and enormous burden that the growth of the federal government has placed on the American people, this Supreme Court will decide properly to rule as unconstitutional the individual mandate and other aspects of the law that derive from powers that are not in our Constitution. That is my bottom line.
The Wall Street Journal – Supreme Court Agrees to Rule on Health Law – Dated: November 14, 2011
The Washington Post – Supreme Court to hear challenge to Obama’s health-care overhaul – Dated: November 14, 2011
Forbes – Finally, Supreme Court Agrees to Hear Obamacare Challenges – Dated: November 14, 2011