Robert Alt, Director, a fellow at the Center for Legal and Judicial Studies at the Heritage Foundation spoke about “Obamacare, Congress and What Comes Next" at the 35th Annual Heritage Foundation Resource Bank held in Colorado Springs on April 27. Mr. Alt remarked on the constitutionality of ObamaCare's health insurance mandate and how even after 28 states have filed lawsuits, prominent legal commentators were saying there is no legal issue of concern when it comes to Obamacare, all while he and many others have known the bridge has been out for a while.
Alt suggested that there are several clues which lead us to believe the justices will be striking down the entire law, and at minimum, the individual mandate. One is that Justice Alito asked about the fact that on day one, the government’s lawyer, Verrilli, came in to argue that Obamacare is absolutely not a tax, but the very next day he was planning on coming in and arguing that Obamacare is in fact a tax. The justice asked specifically, is this your plan? Surprisingly, Verrilli admitted as much.
The second issue ss that the individual mandate is a violation of the commerce clause, forcing everyone to pay for insurance, or pay a fine. The justices have raised concerns about the breadth of power granted to Congress under the Commerce Clause should the mandate be ruled constitutional. Mr. Alt remarked that the court is actually worried about a much bigger issues. If they let Obamacare stand as it is, it sets a precedent for lower courts that it is acceptable to compel someone to engage in a specific form of commerce, in this case health insurance, when they have not chosen to do so on their own. T
he regulations included in the law require individuals to become active in a market that they would not otherwise be active in. So if they adopt the theory that the Federal government can force people into commerce, because healthcare is ‘special’as suggested by the administration, then what’s to stop lower courts from deeming that, let’s just say, for laughs, that a health club membership is not also special, after all, everyone should be exercising. The mandate doesn’t just regulate this new commerce, it compels it.
Mr. Alt went on to remark how Justice Kennedy specifically has been known to support individual rights. Justice Kennedy, thought to be, by many, the crucial swing vote in determining constitutionality of the mandate, said the government faces a "very heavy burden of justification" to show how the Constitution would authorize the mandate. He also said the mandate "fundamentally changes the relationship between citizens and the government."
Another encouraging sign, Alt brought up, albeit a bit less scientific or legal in nature, is that Justice Roberts has conducted a study of the relationship between the party who asks the most questions and wins at the Supreme Court. It has been the case that the party that asks more questions tend to lose, and in this particular case, the administration’s attorney, Verrilli, received almost twice as many questions as the other side.
Yet another issue addressed by Alt was the question of the law's severability. Because Obamacare was passed by Congress without a severability clause, which would make certain that remaining parts of the law would stand if others parts of it were overturned, the court will have to decide how much of the law to strike down and how much to let stand should it rule that the mandate is unconstitutional.
Alt suggested three different scenarios. Either, (1) The whole law will be struck down. This is the position being argued by the 26 states challenging the law. Or, (2) The insurance mandate goes down, as do the law's major insurance regulations, which says that the rules preventing insurers from engaging in discrimination against individuals with preexisting conditions cannot stand without a mandate Or (3) The mandate goes down, but the entire rest of the law stands. In the final scenario, we are guaranteed several more years of growing pains.
Let’s hope the Justices will say that Congress overreached by a wide margin and strike the whole thing down. That might be a strong enough sting to Congress to keep them from meddling with health care for years.