On Wednesday, the National Federation of Independent Business petitioned the Supreme Court to review a decision from the 11th Circuit Court of Appeals regarding ObamaCare. The Obama Justice Department feels good about its general track record defending the law in appeals courts, and has also filed a petition with the Supremes.
The Administration could have kept things bottled up in the 11th Circuit for a while, but most observers agree it would go all the way to the highest court sooner or later… and if “later” meant after the 2012 elections, there might have been a very different Justice Department arguing the government’s case, with decidedly less enthusiasm.
A Supreme Court battle fought during the height of the election would make the unpopular law into dinner-table conversation at a moment when the President doesn’t want voters choking on all the things his signature legislation forces them to do. Victory now would give Obama some campaign talking points, while defeat at this early date would leave him with time to recover.
From a legal standpoint, this is the main event: the heavyweight title fight between Obama’s health care scheme and the nation that never wanted it.
The 11th Circuit made two important points in its ruling. First, ObamaCare’s individual mandate is unconstitutional. Second, the court “severed” the mandate from the rest of ObamaCare, leaving the rest of the beast to shamble mindlessly forward after surgically removing its pulsating heart.
The individual mandate is the core rationale of ObamaCare, which socializes health insurance costs by requiring everyone to purchase insurance. In essence, insurance companies would be given a guaranteed income stream, in exchange for providing lavish mandatory benefits, enumerated in the thousands of pages of regulations that would re-shape the American economy to accommodate the President’s agenda.
Remember, at one point ObamaCare was going to require small businesses to fill out millions of 1099 tax forms, in an effort to capture a little previously uncollected tax revenue, and defray some of the immense cost of the program. Thus was a “health care” bill intended to change the way American small businesses paid for paper clips.
The “mandate” concept, ruled unconstitutional by the 11th Circuit Court, was introduced for a simple political reason: it allowed the architects of ObamaCare to pretend it was not being funded by a “tax.” The bill was already a tough sell when the public was bamboozled by wild claims of deficit neutrality, and hypnotized by thousands of rapidly spinning clauses and sub-clauses. The public mind would have been sharply focused if they had been told they were about to be hit with a new multi-trillion-dollar “tax.” Mandates are taxes the IRS doesn’t collect.
Without the individual mandate, both the funding mechanisms and basic logic vanish from a bureaucratic nightmare that was already poised to blow our stratospheric national debt into whatever comes after the stratosphere. (I looked it up. It’s the mesosphere. After that you’ve got the thermosphere, which America’s debt should pass through sometime around 2020. Then it’s out of the blue, and into the black.)
It’s highly unlikely that ObamaCare could have passed Congress without the individual mandate in place. It barely crawled off Capitol Hill as it was, leaving a grisly trail of kickbacks, payoffs, and backroom deals glimmering in the moonlight behind it.
Nevertheless, there’s not a chance that the white-knuckled statists of the Democrat Party would allow the rest of their health care takeover die after losing its heart. The only way to put this thing down for good is to nullify the “severability” ruling, and that’s what the National Federation of Independent Business is shooting for. As Heartland Institute Research Fellow Ben Domenech put it:
It is absolutely essential that the Supreme Court take up the matter of severability along with giving us its ruling on the individual mandate within President Obama’s health law. The Court must decide this as a whole issue, as soon as possible, to end the uncertainty that has continued to cloud economic decisions by thousands of American small businesses and firms.
States, firms, and citizens need to know what to expect, and legislators will soon learn if there is any limit to the power granted to the Congress via the Commerce Clause, or whether Washington can command anyone to purchase any product for the entirety of their life.
This case has implications beyond even ObamaCare, which might at least face political repeal someday, if it survives its rendezvous with the Supreme Court. As Georgetown law professor Randy Barnett, a staunch ObamaCare critic who represents the NFIB, told radio host Hugh Hewitt on Tuesday:
We’re claiming that they’re making people engage in economic activity, not regulating or prohibiting them from doing so. And that’s something, the government’s doing something here they’ve never done before. In fact, all the courts who have heard this case, Hugh, whether they’ve upheld the mandate, struck it down, or said we can’t decide because of jurisdictional issues, they’ve all agreed nothing like this has ever happened before. There is no Supreme Court precedent that allows Congress to do this. And now, the Supreme Court is going to have to decide if they want to allow Congress this additional new power they’ve never had before, the power to make every man, woman and child in the country buy, do business with a private company, and do so for the rest of their lives.
(Emphasis mine.) ObamaCare was so badly written and hastily cobbled together that even today, we’re still discovering billion-dollar glitches. The National Bureau of Economic Research just released a study that shows “official budget forecasts ignored the cost of insuring many employee’s spouses and children,” because the Congressional Budget Office was “expressly told to do their modeling on single coverage” when analyzing ObamaCare.
How big was this little goof? Oh, a mere $50 billion per year. It’s going to throw off the formula used to determine which families are eligible to join the budget-blasting “federal exchanges.” That just happens to be another core concept of ObamaCare. Some of the valves in this monster’s heart have already clogged up.
The case before the Supreme Court is our last line of legal defense against a fundamental reconstitution of the relationship between American citizens and their government. ObamaCare will make them forever wards of the State, who can be compelled to do whatever the State thinks is good for them… even when that involves making formerly voluntary transactions with private corporations into compulsory requirements of citizenship. May the Supreme Court put an end to this abomination now, and may the people who unleashed it upon us be held accountable at the ballot box.