The question is simple: Is the individual mandate, forcing individuals to purchase health insurance or face fines, constitutional? And let me just shout out a big “NO!” up front just to vent my frustration.
The individual mandate requires every American to buy health insurance (deemed acceptable by the government) by January 2014 or pay a fine.
The fact is that although it should be as simple as that, there is a real issue of law here, because of the court’s distorted commerce clause jurisprudence over the years.
Remember that some lower courts did find the mandate to be constitutional (The 6th Circuit, for example). The Supreme Court, though, chose to hear an appeal from the Court of Appeals for the 11th Circuit, which found it to be unconstitutional.
The arguments will be two hours long, double the usual amount of time allotted for oral arguments, a fact that, once again, highlights the magnitude of the occasion.
The government will argue that it has the power to do so under its commerce power and also under its power to tax. Both are found on Article I, 8 of the Constitution, which says in relevant parts:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
Arguing for the government will be U.S. Solicitor General (SG) Donald Verrilli, whom we heard will have the strange task of arguing against the argument he made yesterday. How can the government invoke its power to tax, when it argued yesterday that there was no tax?
Opponents will argue how unprecedented this power is. Government is not regulating commerce; it is forcing people to engage in commerce. The Founders intended for Congress’ powers to be limited, and upholding this law almost renders those powers limitless.
What will the government force you to buy next? All under penalty of law.
Although we cannot make a determination based on oral arguments alone as to which way the Court will go, we will definitely gain some insight as to where the Justices’ interests lie -and perhaps in which way they are leaning.
Be sure to come back to ConcernedWomen.org later today to hear what happened inside the courtroom.
Other resources:
Day 2 Recap Part I: Government Crash
Day 2 Recap Part II: The States Shine
Day 1 Recap: Skepticism Abounds
CWA’s Guide to Health Care Oral Arguments at the Supreme Court