Even some of the liberal judges appear skeptical about Obama’s defense of ObamaCare:
On the first day of oral arguments in the case challenging President Obama’s national health care law, justices seemed skeptical that the individual mandate should be considered a tax — one of the main consitutional defenses being offered for the law.
To be clear, today’s 90 minutes of oral arguments did not concern the underlying merits of the case, but whether an 1876 law called the Anti-Injunction Act bars the Court from ruling on the suit at this time. Under the Anti-Injunction Act, people cannot challenge a tax in court until after they have paid it, something that would effectively punt the issue until at least 2015. However, there is some overlap between this question and the idea of whether the mandate is a tax, and justices on both sides of the ideological fence expressed skepticism that the mandate should be treated as a tax.
“This cannot be a revenue raising measure, because if it’s successful, there won’t be any revenue raised,” said Justice Ruth Bader Ginsburg of the mandate.
Another liberal on the court, Justice Stephen Breyer, said of Congress’s description of the fine for non-compliance with the mandate, “They called it a penalty and not a tax for a reason.”
Alito came in for the swoop:
Justice Sam Alito asked Verrilli whether he could point to another case in which courts identified something as not a tax for the purposes of the Anti-Injunction Act while still ruling it was a constitutional exercise of taxing power. Verrilli could not name any.
First Obama said the mandate wasn’t a tax, and then they said it is.
And now even the liberal judges of the Supreme Court are looking a bit wary on their argument.
That doesn’t bode well for ObamaCare advocates. If the mandate gets struck as a constitutional overreach, then regardless of whether the Supreme Court finds severability or not, the entire structure of ObamaCare collapses. It will hasten momentum for its repeal, and insurers will switch sides to demand its complete rejection.
And even Howard Dean believes the mandate will be struck down:
Dean, a former presidential candidate who also chaired the Democratic National Committee from 2005 to 2009, said on “CBS This Morning” that it’s “likely the individual mandate will be declared unconstitutional” but he expects the justices will sever that finding from the rest of the bill, meaning other elements, like the ban on denying people insurance based on pre-existing conditions, could remain in effect.
Howard Dean believes ObamaCare will survive if the mandate is struck down. Richard Epstein:
…if the individual mandate is struck down, does the rest of the law go down with it? As Abbe Gluck and Michael Graetz recently noted in the New York Times, both the Obama administration and the states opposing the program insist that the entire ACA will go down the tubes if the mandate is struck down. Their motivations of course diverge. The Obama administration thinks that the all-or-nothing position improves the odds that the mandate will be upheld, given the vast dislocations that will follow if it is struck down. The states think that the mandate is a loser on its own terms, and want to bring the rest of the statute down with it.
Both sides are wrong. As I have urged in a brief coauthored with Mario Loyola of the Texas Public Policy Foundation and Ilya Shapiro of the Cato Institute, Title I at the very least has to fall if the mandate is struck down because it is the only backstop that Congress put in to control adverse selection under the ACA. Writers like Gluck and Graetz are wrong to say that allowing severability rightly puts the issue back into the lap of the next Congress. A future Congress could easily be paralyzed on the issue, which leaves us with an incoherent structure. But we do know that the 111th Congress that passed this bill a year ago on March 23, 2010 did regard the two as indissoluble.
Just because the rest of Title I is not severable from the individual mandate does not mean that the mandate itself is saved from constitutional attack by propping up the Commerce Clause with the Necessary and Proper Clause. The key issue is this: Severability asks whether one part of the legislation can function as Congress intended if another part is stripped out. In contrast, the Necessary and Proper Clause only saves that legislation which is needed to make the statute cohere. As noted earlier, the individual mandate was only introduced as a second-best response to the ACA’s problem of adverse selection risk.
The mandate is not necessary for that purpose because there are other devices that do a far better job in coping with that omnipresent danger. And it is surely not proper to use an extraordinary remedy that expands the scope of Congressional power to achieve an end that could be controlled by more traditional means. Thus, restrictions on the power to pull out of an insurance plan can deal with adverse selection and general taxes can deal with the need to subsidize high-risk individuals —if that is thought to be a legitimate government function.
In the end, Obamacare’s rickety economic structure is intimately connected to its constitutional infirmities. The simple fixes that control the worst excesses of the ACA obviate the need for the government’s constitutional adventurism.
If SCOTUS strikes the mandate down I believe it will provide momentum to repeal it. At least I hope it does.