Lots to consider as Obamacare heads to the Supreme Court
Let’s start with who are eligible to hear this case.
Two Justices have possible conflicts of interest, and only they can recuse themselves if they believe they do: 1) Justice Kagan for her having been in the Obama administration and 2) Justice Thomas for whom his wife is a Tea Party leader and advocate against Obama in this case.
YankeeJim Opinion on Justice 1: Either both or neither should recuse. It is probably best if they all participate.
Next, consider the issues:
Is Obamacare – affordable healthcare for all Americans just like Social Security and Civil Rights? If so, then government can be in the business of attending to this need. If not, what does that say about Social Security and Civil Rights? Do you think Americans will want to roll back the clock on those issues?
YankeeJim Opinion on Justice 2: The government can be in the business of addressing the need, though the court will likely provide specific opinion and guidance regarding implementation and enforcement.
YankeeJim Opinion on Justice 3: The penalty for noncompliance is not a tax, but a penalty. The lower court is overruled. (Think about all of the penalties that would otherwise have be reclassified as taxes if the justices decided penalty = tax.)
“Supreme Court to hear challenge to Obama’s health-care overhaul
By Robert Barnes, Updated: Monday, November 14, 10:38 AM
The Supreme Court said Monday it will hear a challenge to the health-care overhaul act passed in 2010, with a decision on President Obama’s most controversial domestic achievement likely to come in the summer of his reelection campaign.
The court said it will decide whether the Affordable Care Act exceeded Congress’s power by requiring almost all Americans to have health insurance by 2014 or pay a penalty; whether the massive law can survive without the so-called individual mandate; and whether it is premature for the court to pass judgment on the act.
The question of whether it is premature hinges on whether the court decides that the penalty for failing to secure health insurance constitutes a tax. If such a penalty is equivalent to a tax, then — according to an earlier ruling by a lower court — any decision on the law’s constitutionality must wait until the tax is actually levied.
Opponents say the massive new law is an unprecedented expansion of the national government. Challengers went to court within minutes of Obama signing the bill in March 2011, and more than 25 lawsuits eventually were filed. More than half the states have objected to the act, which was passed by a Democratic-controlled Congress.
On Monday, the court accepted the case brought by Florida and 25 other states, as well as the National Federation of Independent Businesses.
The case comes from the one appeals court — the U.S. Court of Appeals for the 11th Circuit — that has struck down the law. Three other appeals courts have either said the law is constitutional or that it is premature to hear challenges to it.
Both the challengers and the administration have urged the court to take the case, saying uncertainty about the law’s constitutionality needed to be resolved as quickly as possible. The administration has said the act should be upheld as a valid exercise of federal power, just as Social Security and the Civil Rights Act were found to be constitutional.
“We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree,” White House spokesman Dan Pfeiffer said in a statement Monday.
It could be the court’s most high-profile decision since Bush v. Gore in 2000. And it puts the court in position to weigh in on the question that has roiled the political landscape since Obama’s election: the scope of the federal government’s power.
Although the court did not say when it will hold oral arguments in the case, they likely will come in March. The justices normally finish their work by late June, then leave for summer recess.
The court granted extensive oral argument time — 51 / 2 hours — to hear the complicated constitutional questions. And it appears that all justices will take part in the decision.
Conservative groups had called on Justice Elena Kagan to recuse herself because she worked for the Obama administration as solicitor general. Liberal groups had said Justice Clarence Thomas faced a conflict because of the political activities of his wife.
Justices make their own decisions about whether they should recuse themselves.”