Politics
The Supreme Court of the United States (Paul Conner/TheDC) The Supreme Court of the United States (Paul Conner/TheDC)  

Stage set for Supreme Court showdown over Obamacare

Supreme Court watchers are expecting a showdown over Obamacare in the wake of a court decision striking down a key portion of the health care law.

The 11th Circuit U.S. Court of Appeals ruled Friday the individual mandate in the health care law is unconstitutional. The decision conflicts with another circuit court’s ruling. Many now believe the dueling court rulings have set the stage for a significant Supreme Court case on Congress’ tax authority and commerce powers.

“Now that there’s a split among the circuits, it just about ensures it’s going to the Supreme Court,” said Erwin Chemerinsky, dean of the UC Irvine School of Law and a constitutional scholar.

Under the Commerce Clause of the Constitution, Congress can “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Courts tended to narrowly interpret the Commerce Clause until the 20th century, when Congress’ regulatory powers were greatly expanded.

Chemerinsky, the White House and others argue the health care law fits well within those established powers.

“It’s very difficult under the constitutional principles we’ve followed since 1930 to argue that an $850 billion industry can’t be regulated as interstate commerce,” Chemerinsky said. (RELATED: White House strikes back against health care ruling)

The 11th Circuit ruled, however, that the individual mandate, which will require all those who can afford to do so to purchase some form of health insurance or face a fine, was a penalty, not a tax.

The court “concluded that the individual mandate exceeded congressional authority under Article I of the Constitution because it was not enacted pursuant to Congress’s tax power and it exceeded Congress’ power under the Commerce Clause and the Necessary and Proper Clause.”

Conservative opponents of the law and more federalist-leaning law scholars have applauded the decision.

“It’s a very strong opinion on most issues,” said Ilya Somin, an associate professor of law at George Mason University. “It does a very good job of explaining why there’s no way to uphold this mandate without giving Congress the power to enforce a mandate of any kind.”

Somin said a key distinction in the case, which may give the Supreme Court pause, is the individual mandate regulates inactivity, rather than activity of businesses and consumers.

“By and large, the Supreme Court has taken an extremely expansive view of Commerce Clause powers,” Somin said. “But this case is different because the Court has never addressed the question of regulation of inactivity. There’s always been some kind of preexisting activity that Congress was regulating.”

The Supreme Court’s last major ruling on the Commerce Clause was Gonzales v. Raich in 2005. The Court ruled Congress can criminalize the production and use of homegrown marijuana, even in states with medical marijuana laws.

“I feel the Raich decision was wrong,” Somin said, “but even as expansive and dubious as it was, it was still regulating activity.” (RELATED: Court of Appeals strikes down Obamacare individual mandate)

But while constitutional scholars may disagree on the precedents and semantics of the case, they acknowledge it will have far-reaching impacts.

“There’s not been a law of this significance before the Supreme Court in decades in terms of Commerce Clause power,” Chemerinsky said. “The laws they considered before were so much less important than this one.”

The issue has also spurred a national discussion on federalism and the limits of congressional power.

“I think reasonable people can disagree over whether the mandate is constitutional, but it’s clear now that this is not just some frivolous lawsuit by right-wing extremists,” Somin said. “Nobody can say that any longer.”

  • Jagraham

    1.     O The Time Has Indeed Come!
    Governors of 35 states have already filed suit against the Federal Government for imposing unlawful burdens upon them. It only takes 38 (of the 50) States to convene a Constitutional Convention.
    This will take less than thirty seconds to read. If you agree, please pass it on.
    An idea whose time has come!
    For too long we have been too complacent about the workings of Congress. Many citizens had no idea that members of Congress could retire with the same pay after only one term, that they specifically exempted themselves from many of the laws they have passed (such as being exempt from any fear of prosecution for sexual harassment) while ordinary citizens must live under those laws. The latest was to exempt themselves from the Healthcare Reform … in all of its forms. Somehow, that doesn’t seem logical. We do not have elite that is above the law.
    I truly don’t care if they are Democrat, Republican, Independent or whatever. The self-serving must stop.
    The 26th amendment (granting the right to vote for 18 year-olds) took only 3 months & 8 days to be ratified! Why? Simple! The people demanded it. That was in 1971…before computers, before e-mail, before cell phones, etc.Of the 27 amendments to the Constitution, seven (7) took 1 year or less to become the law of the land…all because of public pressure.
    I’m asking each addressee to forward this Email to a minimum of twenty people on their Address list; in turn ask each of those to do likewise.
    In three days, most people in The United States of America will have the message. This is one proposal that really should be passed around.1. Proposed 28th Amendment to the United States Constitution:American Conservative says:December 7, 2010 at 11:09 amAn Amendment to the Constitution may be the only way; but how it is worded means everything. I suggest that it be stated like this:The Executive, Judicial, Legislative Branches of the Federal Government – employee(s), appointee(s), bureaucrat(s), volunteer(s) and all elected person(s) of the Republic are subject to, without exception or exclusion, all Laws and Executive Orders (Executive Orders are not enforceable as Law without Legislative passage by Majority vote of each elected Party of both Houses of the Congress) that are passed upon the citizen, and non-citizen alike. All person(s) that have sworn/affirmed an oath to Defend the Constitution of the Republic of the United States are subject to said Laws. No person(s) subject to the Constitution of the Republic will be exempt from the affect/effect of this Amendment. Failure of the United States Justice Department to enforce Federal Law(s) upon the Executive, Judicial, Legislative Branches of the Federal Government will be guilty of Treason against the Constitution of the Republic. United States Law is the only Law authorized to be used to decide or determine the ruling of any case affecting/effecting the Republic of the United States or its Citizens and it is Treason against the Republic for any Court to use/consider any other Law to make its ruling. The United States is a Republic and English is the Official Language of the peoples of the Republic. All Legal Documents are to be in the Official Language and no other without exception. This Amendment affects/effects Past, Present, Future of the Republic.
    You are one of my 20+.Keep it going, Jim.
     
     
    Link to comment: http://disq.us/29n2lu

  • Jagraham

    1.     O The Time Has Indeed Come!
    Governors of 35 states have already filed suit against the Federal Government for imposing unlawful burdens upon them. It only takes 38 (of the 50) States to convene a Constitutional Convention.
    This will take less than thirty seconds to read. If you agree, please pass it on.
    An idea whose time has come!
    For too long we have been too complacent about the workings of Congress. Many citizens had no idea that members of Congress could retire with the same pay after only one term, that they specifically exempted themselves from many of the laws they have passed (such as being exempt from any fear of prosecution for sexual harassment) while ordinary citizens must live under those laws. The latest was to exempt themselves from the Healthcare Reform … in all of its forms. Somehow, that doesn’t seem logical. We do not have elite that is above the law.
    I truly don’t care if they are Democrat, Republican, Independent or whatever. The self-serving must stop.
    The 26th amendment (granting the right to vote for 18 year-olds) took only 3 months & 8 days to be ratified! Why? Simple! The people demanded it. That was in 1971…before computers, before e-mail, before cell phones, etc.Of the 27 amendments to the Constitution, seven (7) took 1 year or less to become the law of the land…all because of public pressure.
    I’m asking each addressee to forward this Email to a minimum of twenty people on their Address list; in turn ask each of those to do likewise.
    In three days, most people in The United States of America will have the message. This is one proposal that really should be passed around.1. Proposed 28th Amendment to the United States Constitution:American Conservative says:December 7, 2010 at 11:09 amAn Amendment to the Constitution may be the only way; but how it is worded means everything. I suggest that it be stated like this:The Executive, Judicial, Legislative Branches of the Federal Government – employee(s), appointee(s), bureaucrat(s), volunteer(s) and all elected person(s) of the Republic are subject to, without exception or exclusion, all Laws and Executive Orders (Executive Orders are not enforceable as Law without Legislative passage by Majority vote of each elected Party of both Houses of the Congress) that are passed upon the citizen, and non-citizen alike. All person(s) that have sworn/affirmed an oath to Defend the Constitution of the Republic of the United States are subject to said Laws. No person(s) subject to the Constitution of the Republic will be exempt from the affect/effect of this Amendment. Failure of the United States Justice Department to enforce Federal Law(s) upon the Executive, Judicial, Legislative Branches of the Federal Government will be guilty of Treason against the Constitution of the Republic. United States Law is the only Law authorized to be used to decide or determine the ruling of any case affecting/effecting the Republic of the United States or its Citizens and it is Treason against the Republic for any Court to use/consider any other Law to make its ruling. The United States is a Republic and English is the Official Language of the peoples of the Republic. All Legal Documents are to be in the Official Language and no other without exception. This Amendment affects/effects Past, Present, Future of the Republic.
    You are one of my 20+.Keep it going, Jim.
     
     
    Link to comment: http://disq.us/29n2lu

  • Pingback: More Individual Mandate Commentary Coming Soon | FavStocks

  • http://www.facebook.com/people/Cheryl-Jessup/100000366944083 Cheryl Jessup

    Health Ins is not a product , it’s a service. It’s like lawn service you either do it or hire some one else to do it. Sorry Obama it just does’nt pass the muster. Better luck next time. People always say well you have to purchase car insurance. First of all you don’t have to drive you can use a bike or take mass transit. The Insurance is protect the person you hit.

  • Jagraham

    1.     O The Time Has Indeed Come!
    Governors of 35 states have already filed suit against the Federal Government for imposing unlawful burdens upon them. It only takes 38 (of the 50) States to convene a Constitutional Convention.
    This will take less than thirty seconds to read. If you agree, please pass it on.
    An idea whose time has come!
    For too long we have been too complacent about the workings of Congress. Many citizens had no idea that members of Congress could retire with the same pay after only one term, that they specifically exempted themselves from many of the laws they have passed (such as being exempt from any fear of prosecution for sexual harassment) while ordinary citizens must live under those laws. The latest was to exempt themselves from the Healthcare Reform … in all of its forms. Somehow, that doesn’t seem logical. We do not have elite that is above the law.
    I truly don’t care if they are Democrat, Republican, Independent or whatever. The self-serving must stop.
    The 26th amendment (granting the right to vote for 18 year-olds) took only 3 months & 8 days to be ratified! Why? Simple! The people demanded it. That was in 1971…before computers, before e-mail, before cell phones, etc.Of the 27 amendments to the Constitution, seven (7) took 1 year or less to become the law of the land…all because of public pressure.
    I’m asking each addressee to forward this Email to a minimum of twenty people on their Address list; in turn ask each of those to do likewise.
    In three days, most people in The United States of America will have the message. This is one proposal that really should be passed around.1. Proposed 28th Amendment to the United States Constitution:American Conservative says:December 7, 2010 at 11:09 amAn Amendment to the Constitution may be the only way; but how it is worded means everything. I suggest that it be stated like this:The Executive, Judicial, Legislative Branches of the Federal Government – employee(s), appointee(s), bureaucrat(s), volunteer(s) and all elected person(s) of the Republic are subject to, without exception or exclusion, all Laws and Executive Orders (Executive Orders are not enforceable as Law without Legislative passage by Majority vote of each elected Party of both Houses of the Congress) that are passed upon the citizen, and non-citizen alike. All person(s) that have sworn/affirmed an oath to Defend the Constitution of the Republic of the United States are subject to said Laws. No person(s) subject to the Constitution of the Republic will be exempt from the affect/effect of this Amendment. Failure of the United States Justice Department to enforce Federal Law(s) upon the Executive, Judicial, Legislative Branches of the Federal Government will be guilty of Treason against the Constitution of the Republic. United States Law is the only Law authorized to be used to decide or determine the ruling of any case affecting/effecting the Republic of the United States or its Citizens and it is Treason against the Republic for any Court to use/consider any other Law to make its ruling. The United States is a Republic and English is the Official Language of the peoples of the Republic. All Legal Documents are to be in the Official Language and no other without exception. This Amendment affects/effects Past, Present, Future of the Republic.
    You are one of my 20+.Keep it going, Jim.
     
     
    Link to comment: http://disq.us/29n2lu

  • Jagraham

    1.     O The Time Has Indeed Come!
    Governors of 35 states have already filed suit against the Federal Government for imposing unlawful burdens upon them. It only takes 38 (of the 50) States to convene a Constitutional Convention.
    This will take less than thirty seconds to read. If you agree, please pass it on.
    An idea whose time has come!
    For too long we have been too complacent about the workings of Congress. Many citizens had no idea that members of Congress could retire with the same pay after only one term, that they specifically exempted themselves from many of the laws they have passed (such as being exempt from any fear of prosecution for sexual harassment) while ordinary citizens must live under those laws. The latest was to exempt themselves from the Healthcare Reform … in all of its forms. Somehow, that doesn’t seem logical. We do not have elite that is above the law.
    I truly don’t care if they are Democrat, Republican, Independent or whatever. The self-serving must stop.
    The 26th amendment (granting the right to vote for 18 year-olds) took only 3 months & 8 days to be ratified! Why? Simple! The people demanded it. That was in 1971…before computers, before e-mail, before cell phones, etc.Of the 27 amendments to the Constitution, seven (7) took 1 year or less to become the law of the land…all because of public pressure.
    I’m asking each addressee to forward this Email to a minimum of twenty people on their Address list; in turn ask each of those to do likewise.
    In three days, most people in The United States of America will have the message. This is one proposal that really should be passed around.1. Proposed 28th Amendment to the United States Constitution:American Conservative says:December 7, 2010 at 11:09 amAn Amendment to the Constitution may be the only way; but how it is worded means everything. I suggest that it be stated like this:The Executive, Judicial, Legislative Branches of the Federal Government – employee(s), appointee(s), bureaucrat(s), volunteer(s) and all elected person(s) of the Republic are subject to, without exception or exclusion, all Laws and Executive Orders (Executive Orders are not enforceable as Law without Legislative passage by Majority vote of each elected Party of both Houses of the Congress) that are passed upon the citizen, and non-citizen alike. All person(s) that have sworn/affirmed an oath to Defend the Constitution of the Republic of the United States are subject to said Laws. No person(s) subject to the Constitution of the Republic will be exempt from the affect/effect of this Amendment. Failure of the United States Justice Department to enforce Federal Law(s) upon the Executive, Judicial, Legislative Branches of the Federal Government will be guilty of Treason against the Constitution of the Republic. United States Law is the only Law authorized to be used to decide or determine the ruling of any case affecting/effecting the Republic of the United States or its Citizens and it is Treason against the Republic for any Court to use/consider any other Law to make its ruling. The United States is a Republic and English is the Official Language of the peoples of the Republic. All Legal Documents are to be in the Official Language and no other without exception. This Amendment affects/effects Past, Present, Future of the Republic.
    You are one of my 20+.Keep it going, Jim.
     
     
    Link to comment: http://disq.us/29n2lu

  • joeaiello

    It will take two years before the Affordable Healthcare individual insurance mandate reaches the Supreme Court regardless of what some Georgia hillbilly judge decides. These Fox “News” watching imbeciles have no idea how much it costs the American taxpayer everytime one of these 31 million uninsured people goes to a hospital emergency room to be treated. Not a clue!

    • tanstaafl

      In fact, the SCOTUS could take up the case when the next session begins, this fall, aka very soon. Two circuit courts have ruled, opposing opinions.

      With at least one more circuit court ruling to come.

      Regardless of what some joe blow hillbilly writes on the Daily Caller.

  • pugszb

    My fellow Americans.  The Affordable health Care Act is the beginning of reining in the Insurance companies that make obscene profits from our sick citizens.  We already pay for the slackers that don’t bother with insurance because they are in good health and or are young.  Then they go hiking for example and have an accident.  Off to the emergency room they go with little or no money to pay.  They end up skipping on the bill and then we end up paying for it with increased premiums.
    Our real enemies are clearly explained in the movie, INSIDE JOB.  Check it out.

    • gotapoint?

      Ass! No profit is obscene. It’s an invitation for others to follow suit, until the profit is spread out over several firms. Only when government regulations clog up the works, do you see unfair advantages, or price gouging. If you see “obscene profit,” you should buy stock in the company. Otherwise you’re just a lose,r hater/socialist, Al Gore loving, Obama worshiping idiot moron, who should move to Cuba and leave freedom in your rear view mirror. Sayanora, comrade!

  • Sproing

    When the President and his Democratically controlled Congress were ramming Obamacare down the nations throat the ‘fee’ that non-buyers would pay was a penalty. When they started getting taken to court over their plan they took up the position that they were penalizing anyone they were just taxing them. Typical Liberal/socialist word games and the lies they conjure up to pass what they want.

    Simply put the “individual mandate” is a penalty (sometimes disguised as a tax) levied against any American who chooses NOT to buy an over priced product from private for profit company in order to support a monumental increase in the power that government has over each of us as individuals. I can’t think of anything more un-American and un-Constitutional.

    Read this:    http://www.heritage.org/research/reports/2009/12/why-the-personal-mandate-to-buy-health-insurance-is-unprecedented-and-unconstitutional