
| The Future of ObamaCare |
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The United States Supreme Court scheduled an extraordinary 5.5 hours for oral argument in the legal challenge to ObamaCare, formally known as the Patient Protection and Affordable Care Act. This is nearly unprecedented in recent times, and may bode well for the overturning of the law. Indeed, in the last decade, the Supreme Court has granted oral argument in excess of two hours only once: in the challenge to the controversial limits on campaign finance known as the McCain-Feingold campaign finance law (McConnell v. FEC (2003)), which lasted four hours. To find another case that warranted 5.5 hours of argument one has to look back 35 years to the four consolidated cases in Miranda v. United States (1966). But two hundred years ago, arguments that lasted days were common and limitations on argument (with a requirement of written briefs) did not arise until 1849. For ObamaCare, the Court divided the 5.5 hours into several parts. Two hours will be devoted to the constitutionality of requiring individuals to buy insurance, which the Court of Appeals for the Eleventh Circuit struck down in Florida et al. v. Department of Health & Human Services. This is the lynchpin of ObamaCare, without which it may collapse due to the weight of its enormous costs. The Court allocated 90 minutes to the issue of whether this requirement to purchase insurance, also known as the “insurance mandate,” can be severed from the rest of ObamaCare such that the remainder may be upheld as constitutional. The Eleventh Circuit said that it could be severed in order to uphold the other parts of ObamaCare. Evidently the Supreme Court is reconsidering that ruling, and scheduled a long amount of time to do so. The issue of “severability” of an unconstitutional provision, in order to uphold the remainder of a larger law, is not an issue of great complexity. What could consume 90 minutes of oral argument for this? Also, the issue of severability would never be reached if all of ObamaCare were constitutional. If the Court does decide the issue of severability, then it would be only after it invalidated part of ObamaCare as unconstitutional. But wait, there’s more. The Court also set aside an hour for argument and debate on whether the Anti-Injunction Act first precludes the challenge to the constitutionality of the insurance mandate, based on how the government now insists that the penalty for not buying insurance is a tax. When ObamaCare was being railroaded through Congress, its supporters denied it was a tax! Finally, the Court will spend an hour on discussion of whether the costly expansion of Medicaid required of the states by ObamaCare is constitutional, an issue appealed by the states in Florida et al., v. Dept. of Health and Human Services. It seems likely that the constitutionality of ObamaCare will be decided by a margin of one vote. A final verdict is expected in late June . . . after more than adequate time for High Court argument and debate. |