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Forbes

 

Finally, Supreme Court Agrees to Hear Obamacare Challenges

November 14, 2011

By Avik Roy

This morning, the U.S. Supreme Court granted writs of certiorari to one of the Obamacare constitutional challenges: Florida v. HHS. Florida v. HHS is the key case, coming up from the Eleventh Circuit Court of Appeals, in which Obamacare’s individual mandate was overturned. Both sides appealed the Eleventh Circuit decision, with HHS appealing the voiding of the individual mandate, and Florida et al. appealing the decision by the Eleventh Circuit to uphold the remainder of the law (the lower court had overturned Obamacare in its entirety).

With respect to HHS’ appeal, the Supremes will focus on Question 1 of HHS’ petition: “Whether Congress had the power under Article I of the Constitution [i.e., the Commerce Clause] to enact the minimum coverage provision [i.e., the individual mandate].”

For Florida’s appeal, the Court will also focus on Question 1, which is: “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’ spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?” This is the complaint that Obamacare forces states to expand their Medicaid programs in violation of the Tenth Amendment, one that the states have so far lost in every lower court.

In addition, the Supreme Court asked the Florida v. HHS parties to brief and argue whether or not the suit violates the Anti-Injunction Act, the statute that has been at issue in some of the other lower-court cases. The Anti-Injunction Act aspect of the case revolves around whether or not the mandate is a “penalty,” as most courts have ruled, or a “tax,” as some judges have argued.

The National Federation of Independent Business, which was also a party to the Florida v. HHS lawsuit, was granted cert “limited to the issue of severability presented by Question 3” of their petition, which was “whether the ACA must be invalidated in its entirety because it is non-severable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution.”

Hence, all of the key questions from the various lawsuits will be considered through the lens of the Eleventh Circuit’s decision to declare the mandate to be unconstitutional, while upholding the rest of the law. This is a good thing for mandate opponents, as the Eleventh Circuit decision is, as I wrote in August, “the most rigorous and complete repudiation of the mandate ever written.”

Notably, the Court is allocating an unusually large amount of time to hear oral arguments in this case. The Supremes allotted two hours to the mandate’s constitutionality under the Commerce Clause, 90 minutes for the severability question, one hour for the Medicaid-Tenth Amendment question, and one hour on the Anti-Injunction Act issues, for a total of five-and-a-half hours over two days. According to SCOTUSblog, this is a modern record. Typically, the Court limits oral argument to one hour per case.

This case will be one of the most important that the Supreme Court has heard in years—and not even because of the mandate’s specific impact on the lives of every American. Upholding the mandate will mean that Congress has virtually unlimited power to force Americans to buy privately-manufactured products, something that will have massive implications for American law. On the other side, invalidating the mandate will require the Court to tackle the hornet’s nest unleashed by its tortured jurisprudence on the Commerce Clause, starting with Wickard v. Filburn. The Court, in overturning the mandate, will have to constrain Congress’ powers under the Commerce Clause in ways that haven’t been articulated since before the New Deal.

Finally, this case will stand as a landmark regarding conservatives’ efforts to place more judges on the bench who respect the original language and intent of the Constitution. Has the Federalist Society failed or succeeded in this task? Will judicial conservatives like Scalia, Roberts, Alito, and Kennedy respect recent precedents, or much older ones? We will find out in seven to eight months.

Original Source: http://www.forbes.com/sites/aroy/2011/11/14/finally-supreme-court-agrees-to-hear-obamacare-challenges/

 

 
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