This week saw possibly the most monumental case the Supreme Court of the United States has ever taken up. The Affordable Care Act, known more (in)famously as “Obamacare.” The discussions were broken down into three days of talks. We’ll get into them in a second, but I want to make something abundantly clear up front: This legislation is terrifying. Yes, I am all for people having great healthcare and insurance. Unless someone is named Ebeneezer Scrooge, you won’t find a soul who thinks otherwise. The problem here is government overreach, which is not, and this is the most important thing, limited to Conservatives or Liberals. That, too, is something we’ll get to later.
Day one of the Supreme Court hearings was all about determining if the mandate could be considered a tax. Under law, you can’t file a lawsuit against a tax until after it has been implemented. This was the Obama administration’s first attempt to save the lawsuit, and it is a curious method of doing so. If you recall, one of the key statements Obama made about the healthcare overhaul was that it would not increase taxes. The high court decided after deliberations to toss that defense out, which meant the deliberations could go on to day two.
Now, as far as day two goes, I’m not going to re-hash what you’ve already heard, except to say Solicitor General Donald Verrilli (the successor to Justice Elena Kagan, who held the job prior to being appointed to the court, I might add) is almost universally believed to have made a fool of himself. There was stuttering, some apologies and several points he tried to make that didn’t sound coherent. Take this exchange between Verrilli and Justice Anthony Kennedy.
JUSTICE KENNEDY: I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show.
GENERAL VERRILLI: So two things about that, Justice Kennedy. First, we think this is regulation of people’s participation in the health care market, and all — all this minimum coverage provision does is say that, instead of requiring insurance at the point of sale, that Congress has the authority under the commerce power and the necessary proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market … virtually everybody in society is in this market, and you’ve got to pay for the health care you get, the predominant way in which it’s — in which it’s paid for is insurance, and — and the Respondents agree that Congress could require that you have insurance in order to get health care or forbid health care from being provided …
Check the bolded part. What does “the unique nature of the market” mean? Isn’t every market unique? This statement apparently bothered Justice Antonin Scalia.
JUSTICE SCALIA: Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli
GENERAL VERRILLI: The food market, while it shares that trait that everybody’s in it, it is not a market in which your participation is often unpredictable and often involuntary.
Anyone who wants to translate that is free to. I have no idea what the hell he just said.
Well, let’s go back to Justice Kennedy, because this guy is who everyone is looking at. He’s been considered the “swing vote” in many cases since Sandra Day O’Connor left the high court. The American Left is not at all happy about the way things had gone down for them on day two. Everyone thought it was over for the mandate to buy healthcare… which leads us to day three.
Day three was all about severability. But what does that term mean? Rush Limbaugh attempted to explain what he understood it to mean:
In this case you have Obamacare and the mandate, and what I always thought severability was, if the Congress puts a clause in the bill, the severability clause, then it’s a matter of law that any portion of the law can be thrown out but the rest of the law stands.
That’s basically how it was reported by the media. However, Limbaugh says:
That, I was told by my judge buddy, is not what it is. The rule is not whether the constitutional parts of a bill can stand if one or more other parts are unconstitutional. Instead the rule is whether the Congress would have enacted the bill without the unconstitutional parts.
I’m going to pause the Limbaugh transcript here. His next point is pretty important, whether you believe it to be fact or rhetoric. I am only posting it because the Far Right is embodied in Limbaugh.
Now, in the case of Obamacare, no one is arguing that the bill would have passed without the mandate. That’s the test. In fact, it most certainly would not have. The mandate was the funding mechanism, so the rule here is whether Congress would have enacted the bill without the unconstitutional parts. That’s what the judges are supposed to look at in severability. And it was pointed out to me that Justice Scalia has picked up on this. The way Congress deals with this kind of issue is to put a severability clause in the bill to specify that if one part of the bill is declared unconstitutional, the other parts will stand nonetheless because that’s what they intend.
Now, if Limbaugh is wrong, and I am trying to get my head around the enormity of his claim, that is huge. The entire 2000+ page law is gone. Barack Obama’s signature legislation would be kaput. That is one outcome. The second outcome is one that I have talked extensively with U.S. Representative John Fleming about: The mandate gets tossed, but what do the House of Representatives and Senate do with the rest of the law? Republicans will take the opportunity to tear it apart as much as possible until it resembles Swiss cheese and has to be rewritten completely.
Neither of those bodes well for the administration… or do they?
First outcome: The Democratic supporters are charged up and ready to go come November. They see two branches of government working to conspire against Obama. This is likely to not happen, but you do have people like James Carville saying it’s very likely.
Second outcome: This is best represented by following statement from Deputy White House press Secretary Josh Earnest.
The administration remains confident that the Affordable Care Act is constitutional; one of the reasons for that is that the original personal responsibility clause…was a conservative idea.
Hooooooooooooooooooooooooooooooooooooooooooold the phone. The White House surely cannot be claiming the Affordable Care Act was biparti-
The Affordable Care Act is a bipartisan plan and one that we think is constitutional.
Um. 219 Democrats and 0 Republicans voted for it in the House. Voting no were thirty-four Democrats and one-hundred and sixty-seven Republicans. In the Senate, all fifty-nine Democrats and one Independent voted for it and thirty-nine Republicans voted against it (the final Republican, from Kentucky, did not vote). HOW was that bipartisan?
The administration, from claiming the mandate was a tax to claiming it was a bipartisan plan, is getting desperate. I think they are actually afraid of what is about to happen. We won’t get a ruling until June, which leaves the Obama campaign strung out without something to campaign about. And while some of you (especially Limbaugh listeners) will ask “why would they campaign on it?” I will remind you that the plan was insanely popular and in some circles still is. It’s not something he’d just ignore on the road to November, but one he will use to his full advantage in some way or another.