A most unwanted present
Many trade association representatives (including this writer) went to Washington to express business community concerns about the legislation and to request votes against it. History records that the legislation (all 2700 pages of nearly incomprehensible jargon) was finally enacted on party line votes in both chambers and signed into law by President Obama.
The ink was barely dry on the document when numerous lawsuits were filed challenging the constitutionality of the law. A major target of those lawsuits was the individual mandate that requires, beginning in 2014, that every American to have a health insurance policy or be assessed a certain dollar amount by the Internal Revenue Service. Some 26 states have joined together to challenge ObamaCare and were represented by legal counsel before the Supreme Court.
One of the major points of contention in the oral arguments was the exceptionally broad application that must be given to the Commerce Clause of the U.S. Constitution if the individual mandate is to be deemed constitutional. The Commerce Clause gives the Congress the power "to regulate commerce…among the several states…." The application of the Commerce Clause to this legislation exposed sharp division among the nine sitting justices.
Arguments had barely begun when Justice Anthony Kennedy—viewed by many as the swing vote on the court—asked the Obama administration’s Solicitor General if the law was not creating commerce in order to regulate it. Kennedy went on to suggest that application of the Commerce Clause in this instance must necessarily meet an extremely high burden due to the broad expansion of Congressional power it would create. Kennedy seemed to harbor grave doubts that such a burden could be met.
The second day of the oral arguments focused on what would happen to the legislation if the individual mandate were struck down. It was obvious that every member of the court felt grave concerns about how to proceed if the mandate was eliminated. The bill without the individual mandate would be a most unwelcomed present given by Congress and the President to the court. The justices could opt to strike down the entire law by declaring that the mandate was essential to the operation of many other features of the legislation.
Some argued that would be an exercise in judicial activism since some features of the bill could function without the mandate. Others argued that the supreme act of judicial activism would be to have the court go through 2700 pages of law and features delegated to regulatory bodies and pick and choose which ones should remain viable.
The arguments on the individual mandate did not go well for the Obama administration. It is obvious that five justices have very grave concerns about the constitutionality of the mandate. Perhaps the best chance the mandate has for surviving is the potentially messy course the court would have to take to determine what to do with the remaining portions of the law if the mandate is struck down.
The Supreme Court is not in a comfortable spot dealing with an unwieldy piece of legislation that quite likely has serious constitutional flaws. Many in the mainstream media are already saying that if the court rejects the legislation, it is exhibiting the worst form of judicial activism in imposing its will above the law fashioned by Congress. Of course, those same media representatives saw nothing wrong with the largest expansion of governmental power over states and individuals being passed along party line votes in Congress.
No one is certain how the Supreme Court will end up ruling on this case. Everyone can be certain that a majority on the court is very displeased that such a potentially infirm piece of legislation was left in squalor on their doorstep.
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