Supremes hear Obamacare arguments today

Today the Supreme Court will hear arguments on whether or not Obamacare is constitutional.  The issue hinges on whether or not Congress can force citizens to buy a product, as the healthcare law requires of health insurance.  (George Will noted a killer argument filed by the Institute for Justice in an amicus brief:  According to the whole history of contract law, no one can be coerced into signing a contract.)

Does anyone know if the individual mandate is the only aspect of the law the court will hear?  Is the contraceptive and abortion pill mandate also on the table?  I suspect these are separate issues.

The court might overturn the mandate requiring that everyone buy health insurance while still leaving the rest of the law intact.  Which would make it worse than ever, since it would recast health care without even taking care of the uninsured.  Or the court might throw out the whole law on the grounds that its key provision is unconstitutional.  Or the court might uphold the whole law.

So what do you think will happen?

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • Jon

    A majority opinion will find some nexus to interstate commerce and healthcare industry and the populace, and will uphold the law.

    The rationale might go something like: the healthcare industry clearly affects interstate commerce, and when you get sick you use the healthcare industry, therefore, you are affecting interstate commerce by your choices, ergo, the federal government can require you to purchase healthcare insurance.

  • Jon

    A majority opinion will find some nexus to interstate commerce and healthcare industry and the populace, and will uphold the law.

    The rationale might go something like: the healthcare industry clearly affects interstate commerce, and when you get sick you use the healthcare industry, therefore, you are affecting interstate commerce by your choices, ergo, the federal government can require you to purchase healthcare insurance.

  • Kirk

    Well, from what I understand, today’s arguments are just whether or not the court should even hear the case as, technically, there are no injured parties and won’t be for a few years. This is hilarious, because all these people lined up on Friday to get tickets and there’s going to be absolutely no substantive debate, today.

  • Kirk

    Well, from what I understand, today’s arguments are just whether or not the court should even hear the case as, technically, there are no injured parties and won’t be for a few years. This is hilarious, because all these people lined up on Friday to get tickets and there’s going to be absolutely no substantive debate, today.

  • Jerry

    I think they will take a conservative approach, punt and leave it as is. If the American voters don’t like the laws they need to replace the lawmakers…

  • Jerry

    I think they will take a conservative approach, punt and leave it as is. If the American voters don’t like the laws they need to replace the lawmakers…

  • –helen

    Join me!
    I don’t belong to the alleged SuperPac devoted to defeating incombents but I am disgusted enough with the Congress to vote against any on the slate I’m given.

  • –helen

    Join me!
    I don’t belong to the alleged SuperPac devoted to defeating incombents but I am disgusted enough with the Congress to vote against any on the slate I’m given.

  • http://www.quietedwaters.com Josh

    It was very interesting to read that Chief Justice Roberts today questioned whether this “mandate” is even a mandate. His line of questioning suggested that the very weak penalties for non-compliance are insufficient to label this a mandate.

  • http://www.quietedwaters.com Josh

    It was very interesting to read that Chief Justice Roberts today questioned whether this “mandate” is even a mandate. His line of questioning suggested that the very weak penalties for non-compliance are insufficient to label this a mandate.

  • http://www.bikebubba.blogspot.com bike bubba

    Josh, since when is $695, or 2.5% of income (whichever is greater), a minor penalty? (family penalty of $2085!)

    Sorry, that’s not a minor penalty. That’s a mortgage payment or two for my family.

    Hoping and praying that the entire boondoggle is overturned–either by the courts or by Congress.

  • http://www.bikebubba.blogspot.com bike bubba

    Josh, since when is $695, or 2.5% of income (whichever is greater), a minor penalty? (family penalty of $2085!)

    Sorry, that’s not a minor penalty. That’s a mortgage payment or two for my family.

    Hoping and praying that the entire boondoggle is overturned–either by the courts or by Congress.

  • http://www.toddstadler.com/ tODD

    Bike Bubba (@6), how much would it cost to insure an individual? Can it be done for less than 2.5% of his income? Can you insure an entire family for less than 2.5% of the parents’ income? If the answer to these questions, on average, is “no”, then I agree with Josh that these penalties are “weak” — because they cost less than the behavior they’re intending to urge.

    And if your insurance is that cheap, let us all know through whom, so we can all get in on that. Also, if you think the average American has a mortgage as low as 1-2% of his income, you are living in fantasyland. Or somewhere really undesirable.

  • http://www.toddstadler.com/ tODD

    Bike Bubba (@6), how much would it cost to insure an individual? Can it be done for less than 2.5% of his income? Can you insure an entire family for less than 2.5% of the parents’ income? If the answer to these questions, on average, is “no”, then I agree with Josh that these penalties are “weak” — because they cost less than the behavior they’re intending to urge.

    And if your insurance is that cheap, let us all know through whom, so we can all get in on that. Also, if you think the average American has a mortgage as low as 1-2% of his income, you are living in fantasyland. Or somewhere really undesirable.

  • http://www.toddstadler.com/ tODD

    Sorry, did the math wrong on my mortgage rejoinder (@7). Never mind.

  • http://www.toddstadler.com/ tODD

    Sorry, did the math wrong on my mortgage rejoinder (@7). Never mind.

  • http://www.quietedwaters.com Josh

    Bike Bubba (@6), I’m not well enough informed to know the penalties. If your numbers are right, however, I’d ask the same question tODD did (@7).

    I wrote simply because it’s an interesting turn, given that one of the Court’s most conservative Justices articulated a theory on which the Court might avoid striking down the mandate.

  • http://www.quietedwaters.com Josh

    Bike Bubba (@6), I’m not well enough informed to know the penalties. If your numbers are right, however, I’d ask the same question tODD did (@7).

    I wrote simply because it’s an interesting turn, given that one of the Court’s most conservative Justices articulated a theory on which the Court might avoid striking down the mandate.

  • Trey

    The amount Bike Bubba mention is correct: http://prescriptions.blogs.nytimes.com/2010/06/15/whats-the-penalty-for-not-having-insurance/
    Regardless of the amount how does forcing individuals to participate in interstate commerce not violate the Constitution? Furthermore, how is it even a contract since one party is compulsed to participate?

  • Trey

    The amount Bike Bubba mention is correct: http://prescriptions.blogs.nytimes.com/2010/06/15/whats-the-penalty-for-not-having-insurance/
    Regardless of the amount how does forcing individuals to participate in interstate commerce not violate the Constitution? Furthermore, how is it even a contract since one party is compulsed to participate?

  • Joe

    The issue yesterday was whether the penalty is a tax for purposes of the Anti-Injunction Act, which may or may not end the case on jurisdictional grounds. For purposes of this argument, the Solicitor General argued that it is not a tax.

    The issue today is whether the penalty is a tax for purposes of the Taxing and Spending Clause of the US Constitution. For purposes of this argument, the Solicitor General will argue that it is a tax.

    Gotta love the law.

  • Joe

    The issue yesterday was whether the penalty is a tax for purposes of the Anti-Injunction Act, which may or may not end the case on jurisdictional grounds. For purposes of this argument, the Solicitor General argued that it is not a tax.

    The issue today is whether the penalty is a tax for purposes of the Taxing and Spending Clause of the US Constitution. For purposes of this argument, the Solicitor General will argue that it is a tax.

    Gotta love the law.

  • http://www.quietedwaters.com Josh

    Trey (@10), I’m not arguing it’s constitutional. I have my own personal views on what I hope will happen. I’m simply pointing out an unexpected line of questioning from a Justice whom most expected to come out against the mandate. You can read the details here: http://volokh.com/2012/03/26/is-the-individual-mandate-really-a-mandate/

  • http://www.quietedwaters.com Josh

    Trey (@10), I’m not arguing it’s constitutional. I have my own personal views on what I hope will happen. I’m simply pointing out an unexpected line of questioning from a Justice whom most expected to come out against the mandate. You can read the details here: http://volokh.com/2012/03/26/is-the-individual-mandate-really-a-mandate/

  • http://www.bikebubba.blogspot.com bike bubba

    tODD, take a mortgage payment out of my budget, and I guarantee you I do not consider that “minor.” Sorry. Maybe your budget has enough slack to absorb that without consequence, but mine does not.

    And given that the law is “get insurance or pay up to $2085 in penalties”, that flies clearly afoul of the limited intent (read Madison) of the Commerce Clause.

    Furthermore, Trey points out a very important point as well; if you are forced into a contract, that contract is null and void–a document signed under duress (“I’ll break your arm or kill your kids unless you sign this.”) has no legal force.

    So the law ought to be overturned in toto on multiple grounds. Partially due to the rushed nature in which it was enacted, it has no severability clause.

  • http://www.bikebubba.blogspot.com bike bubba

    tODD, take a mortgage payment out of my budget, and I guarantee you I do not consider that “minor.” Sorry. Maybe your budget has enough slack to absorb that without consequence, but mine does not.

    And given that the law is “get insurance or pay up to $2085 in penalties”, that flies clearly afoul of the limited intent (read Madison) of the Commerce Clause.

    Furthermore, Trey points out a very important point as well; if you are forced into a contract, that contract is null and void–a document signed under duress (“I’ll break your arm or kill your kids unless you sign this.”) has no legal force.

    So the law ought to be overturned in toto on multiple grounds. Partially due to the rushed nature in which it was enacted, it has no severability clause.

  • http://www.toddstadler.com/ tODD

    Bubba (@13) said:

    take a mortgage payment out of my budget, and I guarantee you I do not consider that “minor.”

    Don’t know if you’ve noticed, but you’re the only one here using the word “minor”. So you’re battling your own straw man, there. Have at it.

    The question remains whether the penalty for being uninsured is “weak” (@5). Since you didn’t answer my questions (@7) about what health insurance costs, I assume that yours, like mine, costs appreciably more than 2.5% of your income. As such, the penalty costs less than the behavior it wishes to encourage, and, thus, it is weak.

    As for the “contract” argument, I’m unimpressed. Is every law that is passed considered a “contract”?

  • http://www.toddstadler.com/ tODD

    Bubba (@13) said:

    take a mortgage payment out of my budget, and I guarantee you I do not consider that “minor.”

    Don’t know if you’ve noticed, but you’re the only one here using the word “minor”. So you’re battling your own straw man, there. Have at it.

    The question remains whether the penalty for being uninsured is “weak” (@5). Since you didn’t answer my questions (@7) about what health insurance costs, I assume that yours, like mine, costs appreciably more than 2.5% of your income. As such, the penalty costs less than the behavior it wishes to encourage, and, thus, it is weak.

    As for the “contract” argument, I’m unimpressed. Is every law that is passed considered a “contract”?

  • Joe

    tODD said – “As for the “contract” argument, I’m unimpressed. Is every law that is passed considered a “contract”?

    The answer is no, but the argument doesn’t ask you to consider this law a contract either; it asks the court to consider whether the consequence of the law – a contract between to private entities – is legally binding given the fact that one of the parties was forced to enter into by a third party.

    With that clarification, I am not a huge fan of this argument. Its not a silly argument, but I don’t think it will carry the day.

  • Joe

    tODD said – “As for the “contract” argument, I’m unimpressed. Is every law that is passed considered a “contract”?

    The answer is no, but the argument doesn’t ask you to consider this law a contract either; it asks the court to consider whether the consequence of the law – a contract between to private entities – is legally binding given the fact that one of the parties was forced to enter into by a third party.

    With that clarification, I am not a huge fan of this argument. Its not a silly argument, but I don’t think it will carry the day.

  • Gary

    Joe (@15), et al.

    Per the quoted article: “According to the whole history of contract law, no one can be coerced into signing a contract.”

    Hmmm. In the state where I live I can’t register my car unless I have signed a contract with an insurance company for coverage I didn’t necessarily want, but the State told me I had to have (and pay for).

    Now I admit to a difference, in that no one compels me to own a car, so maybe my example isn’t exactly coercion. Nevertheless, since in practical terms I do need to have my own transportation where I live (no commuter trains or subways), and I’d be breaking the law if I drove my car anyway without entering into such a contract, the contract with the insurance company is effectively coerced. And if society-at-large can demand I carry auto insurance, then you’d have to argue that demanding health insurance is something entirely different. Seems a difficult case to make.

  • Gary

    Joe (@15), et al.

    Per the quoted article: “According to the whole history of contract law, no one can be coerced into signing a contract.”

    Hmmm. In the state where I live I can’t register my car unless I have signed a contract with an insurance company for coverage I didn’t necessarily want, but the State told me I had to have (and pay for).

    Now I admit to a difference, in that no one compels me to own a car, so maybe my example isn’t exactly coercion. Nevertheless, since in practical terms I do need to have my own transportation where I live (no commuter trains or subways), and I’d be breaking the law if I drove my car anyway without entering into such a contract, the contract with the insurance company is effectively coerced. And if society-at-large can demand I carry auto insurance, then you’d have to argue that demanding health insurance is something entirely different. Seems a difficult case to make.

  • Tom Hering

    Maybe the difference is when you drive a car, you’re using a public road system, so government can compel you. Whereas when you get sick, you’re not entering a public health care system. Until the mandate goes into effect. Then you are, so they can. Or something like that.

  • Tom Hering

    Maybe the difference is when you drive a car, you’re using a public road system, so government can compel you. Whereas when you get sick, you’re not entering a public health care system. Until the mandate goes into effect. Then you are, so they can. Or something like that.

  • Jon

    The government just assumes you are going to enter into the Health Care System if you get sick. And the HCS is part of interstate commerce at one sixth of our economy, no doubt about it. And Congress has the constitutional right to regulate interstate commerce. So the only way I could see to challenge the “insurance mandate” part of the HC law is for those who don’t enter into the HCS when they get sick–they just don’t go to the doctor!

    It would be akin to choosing not to drive a car, and thereby avoiding mandatory car insurance.

  • Jon

    The government just assumes you are going to enter into the Health Care System if you get sick. And the HCS is part of interstate commerce at one sixth of our economy, no doubt about it. And Congress has the constitutional right to regulate interstate commerce. So the only way I could see to challenge the “insurance mandate” part of the HC law is for those who don’t enter into the HCS when they get sick–they just don’t go to the doctor!

    It would be akin to choosing not to drive a car, and thereby avoiding mandatory car insurance.

  • http://www.bikebubba.blogspot.com bike bubba

    tODD; from Josh’s post:

    “His line of questioning suggested that the very weak penalties for non-compliance are insufficient to label this a mandate.”

    You can quibble over whether “very weak” is equivalent to “minor,” but the fact of the matter is that when government takes a mortgage payment out of my budget, I do not consider that move either “very weak” or “minor,” but rather it has very real repercussions to my family. As such, if Josh’s comment on Roberts’ line of thinking is at all representative of what actually went on and what is actually thought, I cringe for my country. The very idea that two grand out of one’s pocket is a “weak penalty” for the median family is absurd.

    And Jon (#18), health insurance is not equivalent to health care. Sorry. Many people choose not to carry health insurance for various reasons.

    Moreover, if you read documents like the Federalist Papers, it’s pretty clear that the commerce clause is not intended to give the government carte blanche to do whatever it wants as long as interstate commerce is plausibly affected. It was intended as a bulwark against the states making commerce irregular–allowing the government to provide basic ground rules for those who chose to participate, not to require everyone to buy Kentucky Whiskey or Chevy Volts.

  • http://www.bikebubba.blogspot.com bike bubba

    tODD; from Josh’s post:

    “His line of questioning suggested that the very weak penalties for non-compliance are insufficient to label this a mandate.”

    You can quibble over whether “very weak” is equivalent to “minor,” but the fact of the matter is that when government takes a mortgage payment out of my budget, I do not consider that move either “very weak” or “minor,” but rather it has very real repercussions to my family. As such, if Josh’s comment on Roberts’ line of thinking is at all representative of what actually went on and what is actually thought, I cringe for my country. The very idea that two grand out of one’s pocket is a “weak penalty” for the median family is absurd.

    And Jon (#18), health insurance is not equivalent to health care. Sorry. Many people choose not to carry health insurance for various reasons.

    Moreover, if you read documents like the Federalist Papers, it’s pretty clear that the commerce clause is not intended to give the government carte blanche to do whatever it wants as long as interstate commerce is plausibly affected. It was intended as a bulwark against the states making commerce irregular–allowing the government to provide basic ground rules for those who chose to participate, not to require everyone to buy Kentucky Whiskey or Chevy Volts.


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