Now We Wait

The oral arguments before the Supreme Court for and against Obamacare ended today. Though there may be some public discussion by the Justices over the next few days, the court’s opinions on the arguments heard over these last three days is not expected until some time in June. So, we wait.

I am not convinced that the SCOTUS will actually overturn any of it. The questioning regarding the individual mandate on Tuesday was rather vigorous, prompting Jeffery Toobin, a CNN legal analyst to label it a “Train Wreck for the Obama administration.” Today, he added that it “may also be a plane wreck.” [Google search results for “train wreck for obama”. Feel free to pick your favorite source.] He may be right—we can only hope that he is.

Kennedy’s line of questioning was encouraging on Tuesday, asking “Can you [Congress] create commerce in order to regulate it?” And later commenting that “this fundamentally changes the relationship between the government and the individual”. Even this, though, is no clear indication of how he might lean in his decision.

The Twitterverse was all aglitter on Tuesday with the opinions of those opposed to this bill in what, at times, appeared to this writer to be premature celebration. Nothing is certain until the Justices offer their opinions, and those high hopes of the opponents may be dashed if the Justices somehow find the individual mandate palatable or even if they toss out only the mandate and allow the rest (Medicaid expansion, the IPAB–the un-elected, unaccountable bureaucrats who will be holding the medical purse strings for all of us, and other unsavory provisions of this bill) to stand as they are.

This is what I expect to happen. The majority (5-4) of the court may well find the individual mandate to be an egregious overstep of Constitutional limits and strike it down on that basis. The balance of the law I expect to be referred back to Congress for another attempt with specific guidelines delivered by the Court. I am not certain whether that would allow for continued implementation of the old law until the replacement was delivered and signed or not. I surmise that that might be the case, given that the old one (this one) would still be part of the de facto law of the land until whenever the new one arrived.

The Supreme Court most likely does not want to wade through 2500 or more pages to determine what might be salvaged and what should be tossed out, thus, they will “assume”, that Congress, with some direction can “fix it”. I think this would be a mistake. Not only does removing only the individual mandate skew the administration’s doctored numbers used to generate Congressional Budget Office endorsement for this law in the first place (in part because the projections used were based upon the numbers of people that the mandate would affect), the presence of the mandate and the medicaid expansion to an additional 16-40 million people are crucial components to the entire structure of this law. A law so heavily dependent upon those two major provisions cannot function piecemeal. There is also the potential for continuing cases brought before the Supreme Court to revisit other issues of this same law and the regulations it spawns as implementation continues.

One of the arguments advanced by the Solicitor General in defense of the law is that sooner or later, we all have a stake in the health care game. Let’s look at that argument for a moment. Though true, or mostly so, that doesn’t provide a reasonable basis for the federal government to get involved. If we follow that argument to its logical conclusion, we all also have a stake in life that lasts until we die. Using the SG’s reasoning, Congress should immediately begin drafting legislation that mandates the purchase of life insurance for all Americans. We’re all going to die someday. It is in the best interests of your family to have a life insurance policy and given the administration’s and the 111th Congress’ interpretation of the General Welfare clause and the Commerce Clause, well within the right of Congress to regulate.

Or, because we all have a stake in health care, it only makes sense that Congress and the bureaucracies created to manage the health care funding and oversight will have a say in every aspect of our lives. As part of the healthcare collective, if this law is allowed to stand, Congress will have the power to dictate to us what we eat—for the greater good, of course, what we drive—because some vehicles (and drivers) are inherently less safe than others, and ultimately, what medical care we receive from cradle to grave. There will be no stopping that descent into subjugation if it is allowed to start with this law.

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For further reading on the hearings the last few days, I would suggest starting at:
http://www.scotusblog.com and read the commentary.

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