Commerce Clause

ObamaCare at the Supreme Court: Day 2

Yesterday was an interesting day at the Supreme Court. Justices heard the case on the individual mandate from both sides, with Solicitor General Donald Verrilli arguing the case for central part of ObamaCare and Paul Clement and Michael Carvin presenting the case against it. If you support the individual mandate, then it wasn’t a good day. If you oppose ObamaCare, there was reason for optimism that it will be struck down.

In case you missed it, you can listen to the oral arguments below and read the transcript from the Supreme Court’s website:

ObamaCare at the Supreme Court: Day 1

If you were hoping that the Supreme Court would punt on a ruling on the controversial health care reform law, the Patient Protection and Affordable Care Act (PPACA), you’re no doubt disappointed in yesterday’s oral arguments. It appears, based on comments from various Justices, that there is no appetite for punting on the issue.

In case you missed it, you can listen to the oral arguments below and read the transcript from the Supreme Court’s website:

The individual mandate was once a conservative idea

For what it’s worth, I’m opposed to the individual mandate in ObamaCare. I believe it’s a violation of the Commerce Clause for the Congress to compel anyone to purchase a certain product. However, many conservatives are now faced with explaining why they once backed the individual mandate, but now oppose it. Over at Forbes, Avik Roy explains:

As far as I have been able to find, Stuart’s [Heritage health-policy chief Stuart Butler] 1989 brief is the first published proposal of an individual mandate in the context of private-sector-managed health systems. In 1991, Mark Pauly and others developed a proposal for George H.W. Bush that also included an individual mandate. While others credit Stanford economist Alain Enthoven with the idea, Enthoven’s earliest published reference to an individual mandate was an indirect one in the 1992 Jackson Hole paper.

No lawyers on CPAC ObamaCare panel

The point of CPAC, from what I gathered in my visit last year, is fire up the conservative movement and provide them, through the various panels and discussions with the intellectual firepower to sway people they interact with back home. But Ilya Shapiro notes that there are no lawyers sitting on the panel on ObamaCare:

One thing I noticed about this year’s [CPAC] program — other than that my colleague Neal McCluskey is on an education policy panel at 10:30am on Friday — is that there’s a panel on the constitutionality of Obamacare (1:25 on Friday).  Curiously, there aren’t any lawyers on this panel.  C’mon, CPAC, I know this isn’t a Federalist Society convention, but it would seem useful to have people actually grappling with the legal issues educating your attendees about it.  Not all of us have problems communicating with non-JDs; do I have to issue another Obamacare debate challenge?

The panel will include John C. Goodman of the National Center for Policy Analysis, whose main focus is healthcare policy; but, he’s not a laywer. That seems to be an important element missing from the panel, especially when you consider that the Supreme Court will take up this case next month to determine the constitutionality of the individual mandate, not whether or not ObamaCare is good healthcare policy.

Obama’s top 10 violations of the Constitution

Let’s get away from the fight for the GOP nomination for a moment. Over at The Daily Caller, Ilya Shapiro, senior fellow in Constitutional Studies at the Cato Institute, has listed in detail the top 10 constitutional violations committed by President Barack Obama. The list is obviously long, and there is a long to say about them, so I’ve listed excerpts of the main points, though you really should read the entire piece:

The first item on the Shapiro’s list is the individual mandate:

No list of President Obama’s constitutional violations would be complete without including the requirement that every American purchase health insurance, on penalty of civil fine. The individual mandate is unprecedented and exceeds Congress’s power to regulate interstate commerce. If it is allowed to stand, Congress will be able to impose any kind of economic mandate as part of any kind of national regulatory scheme. Fortunately, the Supreme Court has a chance to strike this down during its current term.

Shapiro also lists the Independent Payment Advisory Board (IPAB; better known as “death panels,” which is part of ObamaCare):

Americans want the Supreme Court to take down ObamaCare

ObamaCare is again shaping up to be a contentious issue for the White House and congressional Democrats. The most recent Gallup poll on the question showed that a plurality of Americans want Congress to take action to dismantle President Barack Obama’s biggest legislative accomplishment. Other polls have found that even Democrats are souring on the law.

So it no suprise that a new poll from Quinnipiac, shows that the public wants the Supreme Court, which will take up the law next year, to strike down ObamaCare:

A new poll shows that most voters want the Supreme Court to overturn President Obama’s health care law, with opposition and support falling largely along party lines.

Overall, voters oppose the law by 48%-40%, according to the Quinnipiac University survey. Democrats support the Obama health care effort by 70%-19%, while Republicans oppose it by 86%-8%.

The Quinnipiac survey found independent voters opposed to the law by 45%-38%.

Though they have the House, Republicans don’t have the numbers in the Senate; not to mention majorities large enough to override a veto. The future of the law, and what limitations the Constitution places on Congress, rests in the hands of the United States Supreme Court in what will be the most decision in our lifetimes.

Supreme Court set to take first look at ObamaCare

At the end of last week, Ilya Shapiro noted that all of the briefs needed for the Supreme Court to take up the case against ObamaCare had been submitted. And yesterday, SCOTUSBlog reported that the nation’s High Court will finally look at the issue for the first time next month:

The Supreme Court will take its first look at the challenges to the new federal health care law at its Conference on Thursday, November 10.  Five of the six pending petitions (the sixth is not ready yet) were distributed to the Justices’ chambers on Wednesday, for consideration at that private session.  Although a grant of review is not assured, that is highly likely, since all sides agree that the Court should take on the controversy, and the constitutionality of a key provision of the new law has been decided differently by federal appeals courts.

The first decision the Court will face in this historic dispute is whether to grant any of the petitions or any of the issues.   The Justices have the discretion to grant all, some, or none, since none reached the Court as a mandatory appeal.  (The filings in the cases can be found on the Court’s website, here.)


Scalia criticizes federal drug laws while Obama ups enforcement

During a Senate Judiciary Committee hearing on Friday, Supreme Court Justice Anontin Scalia indicated that federal drug laws have had the unintended consequence of hurting the federal court system:

Supreme Court Justice Antonin Scalia criticized the expansion of federal narcotics laws Wednesday, saying that the large number of drug cases has diluted the quality of the federal justice system.

“It was a great mistake to put routine drug offenses into the federal courts,” he told the Senate Judiciary Committee at an unusual hearing that brought Justice Scalia and Justice Stephen Breyer to discuss with senators the judiciary’s role in the constitutional system.

Justice Scalia said routine drug cases belong in state courts, which handle the vast majority of trials for most criminal offenses. The Judiciary Committee chairman, Sen. Patrick Leahy (D., Vt.), himself a former state prosecutor, agreed.

The increase in federal criminal law has required Congress to enlarge the federal court system, and Justice Scalia suggested that has helped diminish the “elite” quality of the federal judiciary.

Scalia is right (he was also right with his comments on divided government during the same hearing), of course, but this pragmatic point-of-view rings hollow given that the Reagan-appointed justice is partially responsible for continuing federal drug law when he cast voted with the majority in Gonzales v. Raich, a 2005 case where the federal government successfully argued that Congress can regulate homegrown marijuana through the Commerce Clause.

Early speculation on SCOTUS and ObamaCare

George reported on the Eleventh Circuit Court ruling striking down the individual mandate, but not the rest of ObamaCare. A lot of us are wondering what’s next for the case as it moves towards the Supreme Court. Elizabeth Price Foley, author of Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality and healthy policy aide to then-Rep. Ron Wyden (D-OR), tries to read the tea leaves:

The U.S. Supreme Court recognized the critical relationship between individual liberty and federalism and limited powers only a few weeks ago in Bond v. United States. In Bond, a criminal defendant claimed that the federal law she was charged with violating was unconstitutional because Congress didn’t have the power to enact it. If Congress didn’t have the power to enact it, she reasoned, her crime was punishable only by the states. Lower federal courts said the woman couldn’t challenge the constitutionality of the federal law because her argument raised an issue of “states’ rights”—something only states, not individual citizens, could complain about.

Sixth District Court of Appeals green lights expansive view of the Commerce Clause

Yesterday, a panel for the Sixth District Court of Appeals issued a ruling stating that a requirement on Americans to purchase health insurance coverage is a proper use of legislature power through the Commerce Clause:

The Obama administration prevailed Wednesday in the first appellate review of the 2010 health care law as a three-judge panel from the United States Court of Appeals for the Sixth Circuit held that it was constitutional for Congress to require that Americans buy health insurance.

The ruling by the Cincinnati court is the first of three opinions to be delivered by separate courts of appeal that heard arguments in the health care litigation in May and June. Opinions are expected soon from panels in the Fourth Circuit in Richmond, Va., and the 11th Circuit in Atlanta.

Lawyers on both sides of the case widely expect the Supreme Court to take one or more of the cases, perhaps as soon as its coming term, which starts in October. The speed of the Sixth Circuit ruling could help ensure that timing.

The opinion was the first not to break down strictly along seemingly partisan lines. In the 2-to-1 ruling, a judge appointed by a Republican president joined one named by a Democrat to write the majority opinion.

By the panel’s reasoning, as long as the Congress has a “rational basis” to pass legislation, there is no end to the breadth of legislative power. The scenario presented by Sen. Tom Coburn (R-OK) during Elena Kagan’s confirmation process to the Supreme Court, that Congress could pass a requirement that every American eat their vegetables using power under the Commerce Clause, would be legitimate under the Sixth District’s interpretation.

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