SCOTUS Wildcards in the ObamaCare Case

Well it has finally been announced. Early next year the Supreme Court of the United States will sit down for oral argument on ObamaCare and the individual mandate that is schedule to take effect in 2014. The Justices have granted an incredible 5 1/2 hours of oral argument to the healthcare law. This is essentially unheard of in the modern court. The most recent comparable argument was a few years back when the McCain-Feingold Campaign Finance Reform was a matter of dispute. That case was allotted 4 hours of argument. ObamaCare is going to be argued for so long that it will likely take two days on the SCOTUS calendar, it is that important.

The basic argument, without getting into the legal jargon, is that the individual mandate, which would require all Americans to have health insurance or face penalties beginning in 2014, is unconstitutional because it oversteps Congress’s ability to regulate interstate commerce (known as the Commerce Clause). This is because the requirement stems merely from the fact that one is an American and has a pulse. Essentially, if Congress can require you to purchase a good or service merely based upon the fact that you are breathing, then they can order you to do pretty much anything.

There are a few wildcard nuances to this case that are going to be particularly important.

  1. Whether the Obama Administration argues that the mandate has teeth through court enforcement, or via a tax. If it actually becomes a crime to not have health insurance, someone would be fined (or jailed if they fail to pay said fine) for not having insurance. In the alternative, the Administration could argue that the “fine” is actually a “tax” that is “credited” so long as a citizen can prove to the government that he or she has health insurance. This would be a difficult argument to make, not just on interpretational grounds, but political ones as well since it would be an automatic tax increase on the middle and lower class coming directly from the Obama agenda. If the healthcare law does fall in this case, but Obama is re-elected, expect the mandate to reemerge in this vein, because the tax credit defined mandate would not breach the Commerce Clause.
  2. Recusals galore.There are four possible configurations of recusals on the court that could have a huge effect on the outcome of this case. (1) No recusals, (2) Kagan recusal, (3) Thomas recusal, (4) both Kagan and Thomas recusals. Two of this possibilities clearly do not matter. If Kagan and Thomas as both on the bench, their votes will cancel each other out. Similarly, if they are both gone, neither the liberals or the conservatives have an extra advantage over the ordinary. Alternatively, if either (2) or (3) happens, the scales of liberty tip substantially, either towards liberty (if Kagan exits) or towards tyranny (if Thompson goes). Some are calling for Kagan’s refusal because as White House Solicitor she worked intimately with the legal issues surrounding the healthcare law, and presumably helped to research the legal reasons upon which a constitutional argument would be based in this very case. Thomas, on the other hand has no direct personal connection to the law, other than the fact that his wife worked for a group that opposed ObamaCare.

The Court is also set to hear argument on the massive, unfunded expansion of Medicaid, you know, the one that most states are trying to get a waiver for because it will be a budget buster for years to come? No other circuits have heard this issue, so it will be very interesting to see that portion of the law struck down in one shot. More than half the states in the Union have joined the lawsuit against ObamaCare. However, New Jersey is not a party to the lawsuit.

UPDATE: has utilized the Freedom of Information Act to acquire emails written by Justice Kagan during her tenure in the Obama Administration in which she expresses joy at the passage of ObamaCare. There are also other emails discussing preparation for litigation on the subject, which would be a big no-no and should be enough for a recusal to stick. Interestingly, Kagan said in her confirmation hearing that she did not take part in any legal discussion on the healthcare law, which was seemed a bit strange when it was stated, and now should be called into question more seriously. You can read all of the notable emails here.