Pretty soon the Supreme Court will rule on the validity of Barack Obama’s plan to have the government tell consumers what products to buy – in the Obamacare case – and then all those arguments will be done. After all, that is the highest court in the land, right?
LOL! As the new text-language expresses for “laugh out loud.”
“We are already looking beyond June and preparing for years of new court battles over health care mandates,” explained Brad Dacus, president of Pacific Justice Institute.
“Without question, we expect the Supreme Court’s decision to have both immediate and long-term impact on the authority of the federal government on our lives,” he said.
In an unprecedented series of arguments over three days this past week, attorneys for the Obama administration argued that the government has the authority to specify which government-approved products consumers must buy from which companies – or be fined. The plaintiffs in the case said Obamacare simply goes a step too far, not by regulating interstate commerce, but by regulating people who do not participate.
Chief Justice John Roberts appeared skeptical of Obama’s arguments, asking whether the government then could require citizens to buy cell telephones, while on the other end of the spectrum was Elena Kagan, who served as solicitor general for Obama while Obamacare was being strategized and, according to emails that have been released, was an active cheerleader for the program.
In hearing the arguments despite multiple calls for her recusal because of her previous involvement with the very law being challenged, her questions appeared to endorse the massive government control plan.
A decision is expected to be announced, probably in June, but no matter what happens, the program and its details will be tied up in court likely for years more.
Pacific Justice attorneys said they see several major flashpoints, depending, of course, on the course of the court.
“Litigation will continue on separate grounds against the contraceptive mandate that more recently sprang from PPACA regulations developed by HHS,” the organization reported. “Further down the road, the courts would also need to clarify the scope of the religious exemption to the individual mandate, and countless more federal regulations related to the law have yet to be written.”
Even should the court overturn the entire law, the Obama administration already has had two years of work – and money – to install the various restrictions, limits and oversight. Would it be possible for those simply to become null and void?
And further, if the individual mandate, or the entire law, is banished, the organization “expects an immediate push in states like California to enact their own universal health care.”
“California lawmakers have come close to taking such a step within the last few years but have so far deferred to President Obama’s plan. A state-based approach would present new legal challenges since key limitations like the Commerce Clause do not apply to them,” the report said.
“We’re not waiting around for June,” Dacus said. “We will be crafting contingency plans and mapping out legal strategies to promote freedom and keep government power in check.”
Officials with Liberty Counsel said based on the oral arguments, “there is good indication that a majority will rejected the Anti-Injunction Act applying to this case and, thus, reach the merits.”
The government, which has argued both that the fines for those who refuse to buy the government-specified insurance are “taxes” and “fees,” lately argued that they are “taxes,” because federal precedent requires those to be imposed before they can be challenged.
Because the law is phased in over years, that would allow the Obama administration another couple of years and billions of dollars more to install the tentacles of the program before a court would review it.
“It appears that a narrow majority (5-4) are inclined to strike down the individual mandate. It also appears a majority will find that the individual mandate is so intertwined with the ‘guaranteed issue’ (pre-existing coverage) and the ‘community rating’ (removing the insurance companies’ ability to manage and spread risks) that those core provisions will also be struck down,” the organization’s analysis said.
“It remains unclear whether a majority will strike the entire law, although it would be judicial activism for them to, as Justice Scalia said, determine which parts are good and which parts are bad. The entire law should be stricken and Congress should begin again.”
The analysis also noted that politicking and influence is not unknown inside the court.
For example, Liberty Counsel noted, in 1992 following the argument in Planned Parenthood v. Casey, a majority voted to overturn Roe V. Wade.
“For 30 days the late Chief Justice Rehnquist wrote the opinion. Justices O’Connor and Souter convinced Kennedy to change his vote. At the end of May, he met with Blackmun, who authored Roe v. Wade, to tell him he switched his vote.”
“I am pleased with the overall direction of the oral argument,” said Mathew Staver, founder and chairman of Liberty Counsel. “I pray that a majority of the Supreme Court justices vote to strike down Obamacare. Obamacare has been a constitutional and economic monstrosity. Obamacare was not written with the Constitution, states rights, or individual liberty in mind. It is time to put an end to this unprecedented assault on our freedom.”
Van Irion, of Liberty Legal Foundation, raise the prospect that the entire process could be restarted – because of the position of the arguments presented to the Supremes.
He noted that both sides were in agreement that the case “Wickard v. Filbum” is a good law of the land.
That ruling concludes that if an individual does anything to enter “commerce,” the government effectively can regulate anything linked to that. In the specifics, the high court upheld an order that a farmer grow less wheat, even though he planned to use it for his family, because his decisions affected interstate commerce.
“Liberty Legal Foundation has been warning you about this since the beginning. I was still hoping for a pleasant surprise. I was hoping that one of the lawyers arguing against Obamacare would make some statement that Wickard leaves no limits on congressional authority. But it didn’t happen,” Irion told supporters in a newsletter.
“The lawyers opposing Obamacare all argued that the test from Wickard is valid, but that the individual mandate goes too far. Their argument is that the individual mandate forces individuals into commerce. They concede that once an individual has entered commerce by performing any affirmative act, Congress can essentially do anything to that person in relation to the commercial activity. They claim that the individual mandate is different because a person who has done nothing can be forced into commerce. They urge the court to add to the Wickard standard a requirement that Congress can’t regulate a person until that person voluntarily enters commerce by performing some affirmative act,” he explained.
“This is an enticing argument. It might temporarily kill the individual mandate in its current form. However, it must be understood that this proposed new requirement would not limit Congress in any way. You see, any ‘non-activity’ can also be described as an activity by simply changing perspective. The government has already demonstrated this by arguing that the current individual mandate regulates activity, not non-activity. The government argues that the individual mandate is a regulation of the decision to not purchase insurance. Making a decision, they argue, is an activity. This is just one example of how a non-activity can be re-defined as an activity,” Irion said.
“Before you think that such an absurd argument could never work, remember the Wickard standard: A farmer growing wheat on his own land for use by his own family on his own farm is interstate commerce because if many other farmers did the same thing it would reduce demand on the interstate wheat market. This logic is as twisted as the new absurdity: making a decision to not act, is activity. Never underestimate the ability of power-hungry men to twist logic.”
He said should that belief be in the majority, there will be “no real limits on Congress. Even if the court rejects the government’s current argument that making a decision is an activity, the government will find another way to describe non-activity as activity. In other words, even if the court strikes down the individual mandate, if they do it for the wrong reasons we will see the individual mandate back again under another name.”
He said his organization already has begun work on a class action lawsuit that targets the federal legislation based on that argument.
“If the court leaves the Wickard standard … Liberty Legal will give the Supreme Court another opportunity to correct its mistake.”
Justice Antonin Scalia said the issue wasn’t really complicated, however. He said if Congress can compel consumers to buy health insurance because that’s “good for you,” it also could issue an order that Americans must eat broccoli, because that’s also “good for you.”
The decision might very well hinge on Justice Anthony Kennedy, who often is a swing vote between conservative and liberal.
One of his questions was to the government, and related to under what constitutional authority could the government force Americans to buy products?
That, he said, “is different from what we have in previous cases – and that changes the relationship of the federal government to the individual in a very fundamental way.”