United Liberty

Don’t look now, but ObamaCare is headed back to the Supreme Court. Even though many of us thought the decision upholding the constitutionality of the individual mandate — the heart of President Obama’s health care law — was the end of the story, a legal challenge by Liberty University, a Virginia-based Christian college, on religious grounds has brought ObamaCare back into focus.

Philip Klein has the story:

When Obama signed the national health care legislation into law in March 2010, Liberty University launched a multi-leveled suit against the federal government. This past June, the U.S. Supreme Court already ruled that the law’s individual mandate was constitutional, but did not address two other issues raised by the suit. Specifically, Liberty had challenged the constitutionality of  the law’s requirement that employers with over 50 employees either offer acceptable health insurance or pay a penalty and also argued that the law forces the funding of abortion, thus violating the First Amendment’s clause barring Congress from interfering with the free exercise of religion.

When Liberty had argued its case to the Fourth Circuit Court of Appeals in Richmond last year, the judges essentially punted. They determined that a statute called the Anti-Injunction Act, which bars challenges to a tax until somebody has paid it, prevented the court from considering the suit at that time. But as part of its June ruling on the health care law, the Supreme Court said that the Anti-Injunction Act did not apply in this case. (This confused many, because justices also separately ruled that the individual mandate was a constitutional exercise of Congress’s taxing power.)

The Supreme Court will hand down its ruling tomorrow in the case against the Patient Protection and Affordable Care (PPACA). As one might imagine, there is still a lot of speculation about where the ruling might fall. The latest poll on the matter, this coming from the Wall Street Journal and NBC, shows that a plurality of Americans would feel more comfortable if the High Court threw out the law. Republicans have already put together talking points on repeal of the law, anticipating that only the individual mandate will be tossed.

The law is indeed bad news, and not just from a legal perspective. Whether or not the Supreme Court strikes down ObamaCare, it’s not going to prevent health care costs from rising. And then, after the constitutional concerns, we have the more immediate fiscal issues with the law, such as the fact that it raises taxes and fees in tough economic times and is largely a fiscal boondoggle. While theses issues are certainly a big factor driving opposition to ObamaCare, they are not the concern of the Supreme Court, which is tasked the the constitutionality of the law and whether or not it is severable.

The Supreme Court finished out the third and final day of oral arguments yesterday on ObamaCare with severability being the first issue the of the day. The question before the the Justices is if the individual mandate is indeed unconstitutional, does that mean the rest of the Patient Protection and Affordable Care Act (PPACA) have to be thrown out? The second issue before the court yesterday was whether or not Medicaid expansion would be coercive to the states and therefore unconstitutional.

In case you missed it, you can listen to the oral arguments and read the transcript on the severability issue here. The Medicaid arguments and transcript by be downloaded here.

Philip Klein, who has been covering oral arguments before Supreme Court on the PPACA for the last three days, provides a recap of the severability arguments:

ustices on the U.S. Supreme Court this morning considered what to do with the rest of President Obama’s national health care law if its individual health insurance mandate is struck down. Though it was difficult to get a clear read on their thinking as they asked tough questions of all sides, the Court seemed open to the possibility of overturning the entire law.

Paul Clement, arguing for the 26 states challenging the law along with the National Federation of Independent Business, started off the arguments by suggesting the Court look at whether Congress would have passed the law without the individual mandate.

The more liberal justices argued that there were plenty of elements of the law that had nothing to do with the mandate.

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:

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:

We’re just a few weeks away from ObamaCare’s day in the Supreme Court, and the speculation is beginning to ramp up as to which way members will go when it comes time to vote.

This may seem like a surprise, but some of the more conservative members of the Supreme Court haven’t always been the “strict constructionists” that are so frequently labled. Take, for instance, Antonin Scalia, as Damon Root explains:

When the U.S. Supreme Court hears oral arguments later this month on whether the Patient Protection and Affordable Care Act’s individual mandate, which requires all Americans to buy or secure health insurance, oversteps Congress’ lawful authority to regulate interstate commerce, the Obama administration will be drawing heavily from the legal arguments of a surprising ally: conservative Justice Antonin Scalia.

That’s because in 2005, when the Supreme Court last heard a major Commerce Clause challenge to a federal regulation, Scalia sided with the liberal majority and wrote a sweeping opinion in favor of federal power. In that case, Gonzales v. Raich, the Court held that the cultivation and consumption of medical marijuana entirely within the confines of the state of California still qualified as “commerce…among the several states” because this intrastate use of medical pot “substantially affects” the interstate black market in the drug.

Justice Clarence Thomas found the majority’s reasoning specious, and famously stormed in dissent, “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”

Despite mounting evidence that Justice Elena Kagan played a role in the Obama Administration’s defense of the new health care reform law during her time as solicitor general, Chief Justice John Roberts defended her in a recent report on the judiciary:

In his year-end report on the state of the federal judiciary, Roberts for the first time addressed a growing controversy about when justices should recuse themselves from cases and whether a code of conduct that covers lower-court judges should apply to the justices as well.

Roberts, in polite but firm language, made it clear that such decisions must rest with the judiciary and did not suggest any changes.

The recusal issue has been most prominent as the court prepares to address the constitutionality of the health-care overhaul law.

Groups on the right have demanded that Justice Elena Kagan withdraw from the court’s consideration of the case because of her work for President Obama as solicitor general. Liberal groups have called on Justice Clarence Thomas to recuse himself because of the conservative political activities of his wife, Virginia Thomas.

Even though she has recused herself in past hearings and decisions where she had some sort of involvement, it doesn’t seem that Supreme Court Justice Elena Kagan will do the same when ObamaCare reaches the nation’s High Court. However, new e-mails that have surfaced show that she is anything but an unbiased party merely trying to determine the law’s constitutionality:

Alabama Republican Sen. Jeff Sessions issued a letter to Attorney General Eric Holder Tuesday requesting answers to Kagan’s involvement after emails revealed Kagan enthusiastically supporting President Obama’s Patient Protection and Affordable Care Act, as well as possibly orchestrating legal defenses for the act.

The emails, obtained by Judicial Watch and originally reported by CNSnews.com, show Kagan and other administration officials setting up meetings to discuss how to counter legal challenges to the health care law.

In a March 21, 2010 email exchange with Harvard Law professor Laurence Tribe, who also served in the Justice Department at the time, Kagan expressed enthusiasm — so much so that it apparently required two exclamation points — at the news of the law’s impending passage through Congress.

“I hear they have the votes, Larry!! Simply amazing,” Kagan wrote to Tribe in one of the emails.

With ObamaCare headed to the Supreme Court and Democrats supporting repeal of damaging tax and regulatory provisions in the law, Americans continue to sour on President Barack Obama’s key legislative accomplishment; according to a new survey from Gallup:

Given a choice, 47% of Americans favor repealing the 2010 Patient Protection and Affordable Care Act, while 42% want it kept in place. Views on this issue are highly partisan, with Republicans strongly in favor of repeal and the large majority of Democrats wanting the law kept in place.

The Supreme Court announced on Monday that it would review the healthcare law’s constitutionality, a case that is likely to be heard in March, with a ruling issued by next summer. Thus, the law’s ultimate fate may now be in the court’s hands, rather than in Congress’, although it will continue to be a dominant issue in the 2012 presidential campaign. Republicans and conservatives have continued to level criticism against the law since it was passed in March 2010, while President Obama has been just as vigorous in defending its objectives and future benefits.