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Thread: "What to Expect at Supreme Court on Obamacare This Week"

  1. #1
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    Default "What to Expect at Supreme Court on Obamacare This Week"

    FYI...

    http://www.breitbart.com/Big-Governm...care-This-Week

    by Ken Klukowski9 hours ago 83post a comment

    This week, the Supreme Court will hear a case likely to shape our destiny as a nation when it considers whether parts of the Patient Protection and Affordable Care Act—called the ACA in legal circles and Obamacare to the rest of the country—are unconstitutional.

    The case, National Federation of Independent Business v. Sebelius, showcases an unprecedented coalition. Twenty-six states are suing the federal government over the constitutionality of a federal law, the first time a majority of the states of the Union have joined together to take the national government to court.

    These states are joined by the National Federation of Independent Business (NFIB), as well as several NFIB members who are self-insured business owners who object to purchasing insurance that they do not need.

    The justices will consider four issues in this historic case. The first is an esoteric debate on whether the Anti-Injunction Act (AIA) does not allow federal courts to decide the constitutionality of Obamacare’s individual mandate until 2015. The AIA does not apply to Obamacare, for several complex and arcane reasons that will make your eyes glaze over if you’re not a lawyer. But the Court wisely ordered the issue explored, thereby foreclosing any jurisdictional doubts that could cast a cloud of illegitimacy on what will be an extraordinarily consequential ruling.

    The second issue is the one everyone has heard about: Whether Section 1501 of the ACA—the individual mandate that requires every American to buy and maintain health insurance—exceeds Congress’s authority. The Obama administration claims Section 1501 is authorized by the Commerce Clause, the Taxing Clause, and the Necessary and Proper Clause of the Constitution. This issue could go either way, as at least three of the nine justices will likely vote to strike down the mandate, and probably four will vote to uphold it. Plausible arguments can be made for which way the remaining two justices will go, and Justice Anthony Kennedy is expected to be the swing vote on the issue.

    The third issue is whether the ACA’s expansion of Medicaid is unconstitutional. That issue alone makes this a major case, though most people haven’t heard of it because it’s been overshadowed in the media by the individual mandate. The question is whether the ACA’s massive expansion of Medicaid violates the 10th Amendment. Under the Spending Clause of the Constitution, Congress can attach conditions to states receiving federal funds. But the Court has always declared there’s a point at which financial inducements to persuade states crosses the line into coercing the states. Such coercion violates the 10th Amendment because the states are sovereign, co-equal in stature to the federal government, not subordinate agents or subdivisions.

    The Medicaid expansion imposes a crushing $50 billion cost on the states over a decade. If the Court doesn’t find that coercive of the states, then they’ll never find coercion in any future case. There might only be one or two votes to strike down the Medicaid expansion as coercive, but there is a slim chance the Court could get to five votes there as well.

    The final issue is whether the individual mandate can be severed from the rest of the ACA. If Section 1501 cannot be severed, then all 450 sections of the 2,700-page Obamacare statute will be struck down, eradicating President Obama’s entire signature law.

    Three teams of legal ninja masters are arguing these cases. Obama is being represented by Solicitor General Donald Verrilli. The 26 states are being represented by former Bush Solicitor General Paul Clement, a partner at Bancroft. And NFIB is being represented by Jones Day partners Mike Carvin, Greg Katsas, and Kevin Marshall—all Supreme Court heavyweights. Graduates of the nation’s best law schools, most all of these lawyers clerked for a justice on the Supreme Court, and have gone on as partners of top law firms where they’ve built reputations as the finest appellate lawyers in America.

    So those are the issues, the players, and the stakes, as Obamacare goes to the Supreme Court in the case of the century.
    My first question revolves around the first issue: will SCOTUS punt the ball to 2015 or deal with this case now?
    "It's fascinating that liberals are allegedly the most competent people in the history of planet Earth, yet they need the rest of us to pay for the sh** they need to live, like birth control." BS, Inc.

  2. #2
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    Default Tax Fight A Prelude To Supreme Court Fireworks

    Quote Originally Posted by kozanne View Post
    FYI...

    http://www.breitbart.com/Big-Governm...care-This-Week

    My first question revolves around the first issue: will SCOTUS punt the ball to 2015 or deal with this case now?
    I'm guessing that they'll deal with it now; both parties (the Obama administration and the plaintiffs) are in agreement and are both arguing that the court should deal with it now. The court has had to appoint an independent lawyer to argue to the contrary.

    NPR is exceptionally good at SCOTUS coverage with direct quotes in near real-time. That's where I'll be listening (when I can) during the work day. Nina Totenberg is a class act.

    We won't actually hear from the court until June....

    Tax Fight A Prelude To Supreme Court Fireworks
    by NINA TOTENBERG

    The U.S. Supreme Court signaled Monday that it likely will resolve the constitutional challenge to the Obama health care overhaul, sidestepping the procedural issues that could derail the case until 2015.

    The first of the three days of arguments proved, as expected, to be arcane, dense and probably unimportant in the long run. At issue was whether the court could decide the constitutional challenge to the health care law at this point, since to do so would violate the general rule requiring people to pay their taxes first, and then litigate any objection later. That rule was enacted by Congress in 1867 to ensure a steady flow of revenue to run the country. But the court has allowed exceptions to the rule, and during Monday's arguments, the justices seemed inclined to view this case as one of those exceptions.

    Because the Obama administration and the challengers want the case resolved now, the justices appointed lawyer Robert Long to defend the proposition that the court should wait to hear any challenge until a penalty is paid in 2015, after the individual mandate kicks in.

    Long, however, faced considerable skepticism.

    Justice Sonia Sotomayor, for instance, asked what the harm would be if the constitutional challenge is resolved now, before any tax penalty is paid.

    "What is the parade of horribles that you see occurring?" she asked.

    Lawyer Long responded that the government would face a flood of legal challenges to other taxes, thus tying up revenue collection in the courts for years.

    Justice Antonin Scalia, tongue firmly in cheek, disagreed. "What's going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception ... and there will be no parade of horribles because all federal courts are intelligent."

    Is The Penalty A Tax?

    The justices asked Long why the penalty provision in the health care law is a tax at all, since there is no punishment for failure to pay it.

    He replied that the tax penalty is calculated by the IRS, based on income, and collected by the IRS at the time taxes are filed.

    Solicitor General Donald Verrilli Jr., arguing for the government that the case should go forward, seemed to have a slightly easier time of it, except for one particularly thorny question from Justice Samuel Alito.

    Scheduled Arguments

    March 27
    Individual Mandate


    The court will consider the question, does Congress have the authority to compel people to buy health insurance? (2 hours)

    March 28
    Severability


    If the court strikes down one part of the law, such as the individual mandate, does the whole law become invalid? If not, are there other parts that are inextricably linked that would have to be struck down as well? (90 minutes)

    March 28
    Medicaid

    The court hears arguments on requiring states to expand their Medicaid programs. (1 hour)

    "[Solicitor] General Verrilli, today you are arguing that the penalty is not a tax," Alito said. "Tomorrow you are going to be back and you will be arguing that the penalty is a tax."

    Verrilli replied that penalties enacted under the congressional taxing power are not necessarily taxes.

    Gregory Katsas, representing the challengers, also argued that the court should go ahead and rule on the constitutionality of the law without waiting for someone to be assessed a penalty.

    More Sparks To Come

    His argument prompted Justice Stephen Breyer to challenge Katsas on Congress' intent when it passed the 1867 law.

    "One thing that's relevant in my mind is that taxes are, for better or worse, the life's blood of government," Breyer said. Congress quite reasonably usually requires people to pay their taxes before challenging them in court because to do otherwise would mean that "500 federal judges" would "be substituting their idea" of when there should be an exception to the tax law. By requiring people to pay first and litigate later, he suggested, Congress was ensuring a more orderly process.

    Katsas answered that the challengers don't dispute the constitutionality of the tax penalty in the Obama health care law; the challengers only contest the mandate. Chief Justice John Roberts didn't seem to buy the argument.

    "Why would you have a requirement that is completely toothless?" he asked. "You buy insurance or else. Or else what? Or else nothing."

    If Monday's argument was a hallmark of legal gibberish, Tuesday's argument challenging the constitutionality of the individual mandate is likely to provide plenty of fireworks.

    The lawyers have already laid the fuses. Tuesday the justices will light them.
    http://www.npr.org/2012/03/26/149411...ealth-care-law

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