Will SCOTUS strike down the Affordable Healthcare Law

[i8godzilla]

As most of us know, SCOTUS will begin oral arguments in less than five days about the Constitutionality of the Affordable Healthcare Law (Obamacare). From my non-legal understanding the real question is, "Can Congress mandate Americans must buy something just because they are born?" The current administration says the Commerce Clause gives Congress the ability to regulate 1/6th of the American economy. Arguments against, claim that Congress can not force someone to buy something they do not want or need.

Since Wickard v. Filburn Congress has perverted the Commerce Clause and believes they can regulate almost anything. The only successful challenge I recall was United States v. Lopez. However, I do not think Lopez can be used as a comparison. Most recently, in In Gonzales v. Raich, SCOTUS seemed to use the same rational as Filburn.

How the Court will view this case is the real unknown. However, I think it is safe to Assume that Kagan will find in favor of the law and Thomas will vote to strike down the individual mandate. Kagan was the Solicitor General that was in favor of the current mandate and expressed her pleasure (and I believe based on Raich, Thomas is all for limiting Congress' power. Unfortunately, I think the 'conservatives'--based on Raich--will be the Justices that will need to be convinced to strike down this law.

Does health insurance need to be overhauled? IMO, yes. However, that does not mean that I think Congress should or can force me to purchase something.

What do you think will happen?

[hi-power]

I voted 5-4 strike down of the law, but I think it should be 5-3. Kagan had some involvement in the creation of this monstrosity and should recuse herself.

http://jonathanturley.org/2011/11/15/should-kagan-recuse-herself-from-the-health-care-case/

E-mails have emerged between Kagan and Harvard Professor Laurence Tribe where Kagan discusses the legislation in passing and expressly support[s it]. In discovery obtaining by Judicial Watch, then-Solicitor General Elena Kagan writes to Tribe, who was serving in the Justice Department, “I hear they have the votes, Larry!! Simply amazing.” Tribe started the email exchange with a message with a subject line of “fingers and toes crossed today!” However, the primary reason for the message appears to be a planned dinner. He wrote: “So health care is basically done! [R]emarkable. And with the Stupak group accepting the magic of what amounts to a signing statement on steroids!”

(Jonathan Turley is a puzzle - He is a self-described liberal law professor at GWU and has called for prosecution of GWB for war crimes. On the other hand he supported Clinton's impeachment and also the Second Amendment as an individual right).

[AEA]

There is no such thing as "affordable healthcare".
Only a Lib slang for another Govt takeover.

[WildBill]

I know how I would vote, but I have no idea how the SCOTUS will vote.

[74novaman]

There was a promising decision released recently slapping down the EPA for infringing on property rights....

So its possible they might actually check the Constitution for how to steer on this one...a few of them at least.

[smoothoperator]

They should strike it down, along with the more than 90% of federal laws that are literally unconstitutional. However, I don't trust the supremes to put the constitution ahead of their personal agendas.

[WildBill]

They should strike it down, along with the more than 90% of federal laws that are literally unconstitutional. However, I don't trust the supremes to put the constitution ahead of their personal agendas.

[mojo84]

They'll probably refer to the South African constitution.

[WildBill]

They'll probably refer to the South African constitution.

I recently heard that is the best model for a modern constitution.

[i8godzilla]

There was a promising decision released recently slapping down the EPA for infringing on property rights....

So its possible they might actually check the Constitution for how to steer on this one...a few of them at least.

Let's hope the EPA ruling demonstrates that the Court believes that Americans can still question their government. I cannot believe it was an unanimous decision.

[C-dub]

There is no such thing as "affordable healthcare".
Only a Lib slang for another Govt takeover.

Yeah, I haven't heard anything that is affordable about it yet.

[srothstein]

There are two separate legal questions that the court must answer. One of them will definitely influence how they vote on the second. I don't have a lot of hope for the proper ruling on either.

The most important question to most people is if the government can mandate the purchase of any product, either through criminal penalties or a tax based on non-compliance. To me, the most important precedent on this is the purchase of insurance for a car. Remember that they have recognized that travel is a right, which means that the mode is irrelevant legally. While there is a difference in who the insurance protects, it is still requiring the purchase of a product. I think both mandates are unconstitutional but I am not nearly as sure that the court will agree with me as I would like to be.

The second question is if ruling one clause of a law invalidates the whole law. The healthcare law was passed without the customary severance clause in it that protects laws if one section is struck down. I do not see the court wanting to strike down the whole law and there is quite a bit of good in it. I do not see them wanting to make a ruling that changes established law on what is struck down. Since I don't see a way for them to rule on just this clause, I think this question may affect their thinking on the first question.

So I do not have a lot of hope for this law being struck down at all.

[apostate]

I have several problems with the automobile insurance analogy.

First, there are millions (perhaps tens of millions) of American adults who do not own a motor vehicle, and are therefore not required to buy automobile insurance. Some of them even have drivers licenses.

Second, the automobile insurance requirement is State law. The unaffordable healthcare law is Federal law. The United States Constitution seems fairly clear about powers delegated to the feds versus those reserved for the States or The People.

Additionally, Texas has a self-insurance option for motor vehicle operators. I'm not aware of a similar option in obamacare.

Finally (for now) there are no exceptions in the automobile insurance requirements for welfare recipients, congressmen, or retirees. Furthermore, the rest of us are not required to pay extra taxes to provide automobile insurance for those groups in addition to paying for our own insurance out of pocket.

[Heartland Patriot]

There are two separate legal questions that the court must answer. One of them will definitely influence how they vote on the second. I don't have a lot of hope for the proper ruling on either.

The most important question to most people is if the government can mandate the purchase of any product, either through criminal penalties or a tax based on non-compliance. To me, the most important precedent on this is the purchase of insurance for a car. Remember that they have recognized that travel is a right, which means that the mode is irrelevant legally. While there is a difference in who the insurance protects, it is still requiring the purchase of a product. I think both mandates are unconstitutional but I am not nearly as sure that the court will agree with me as I would like to be.

The second question is if ruling one clause of a law invalidates the whole law. The healthcare law was passed without the customary severance clause in it that protects laws if one section is struck down. I do not see the court wanting to strike down the whole law and there is quite a bit of good in it. I do not see them wanting to make a ruling that changes established law on what is struck down. Since I don't see a way for them to rule on just this clause, I think this question may affect their thinking on the first question.

So I do not have a lot of hope for this law being struck down at all.

I've heard it said that if the mandate is ruled un-Constitutional, that it would be like pulling a bottom card from a house of cards...the whole thing will then collapse...maybe an over-exaggeration, but if you can't FORCE people to buy stuff, then it seems like a lot of the rest really isn't worth much no matter how well meaning or written. BTW, despite the car insurance analogy that has been debated back and forth, I imagine there is a way around it, to de-link the two ideas, that is...I guess we'll see...

[Ameer]

In this case the constitution spells it out in black and white. Their votes will show us if they are friends of the constitution or enemies of the constitution.