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Obamacare Mandate in Deep Trouble

by Keith Koffler on March 27, 2012, 2:21 pm

The Obamacare health insurance mandate appears to be teetering on the edge of being struck down by the Supreme Court, as the only potential swing justices – Anthony Kennedy and Chief Justice John Roberts – expressed deep skepticism that the government’s power to compel commerce could be limited once it can force you to purchase insurance.

Kennedy appeared deeply skeptical until the end, when he gave proponents of the mandate some hope by suggesting health care may be a unique case.

Here’s a concise analysis by Lyle Denniston, author of SCOTUSblog:

If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive.  If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him.  But if he does not, the mandate is gone.

But take a look at legal analyst Jeffrey Toobin on CNN:

Various publications picked up on the problem for Obamacare as well.

From the Washington Post:

Justice Anthony M. Kennedy, traditionally the justice most likely to side with the court’s liberals, suggested that the 2010 Patient Protection and Affordable Care Act invoked a power “beyond what our cases allow” the Congress to wield in regulating interstate commerce.

From the Wall Street Journal:

The Supreme Court’s five conservative justices on Tuesday sharply challenged the Obama administration’s arguments for the health-care law, with Justice Anthony Kennedy saying the government has a “very heavy burden of justification” for the law’s requirement that people carry health insurance or pay a penalty.

Chief Justice John Roberts said that if the court approved of the mandate, it may be hard to set limits.

“All bets are off,” Chief Justice Roberts said.

Justice Kennedy said the mandate would change the relationship between the government and individuals in a “fundamental way,” showing skepticism toward Mr. Verrilli’s argument that the mandate follows Congress’s well-established authority under the Constitution’s Commerce Clause.

But Kennedy also had this to say, according to this quote noted by Politico.

“And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in this case.”

This thing has come a long way from dismissive assurances by Democratic leaders like Nancy Pelosi that legal challenges to the law were ridiculous. Not anymore.

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MarjoJimbo March 27, 2012 at 2:23 pm

Our family’s employer-provided health care has already been gutted in anticipation of ObamaCare.

nelly March 27, 2012 at 3:23 pm

so has our families employer provided healthcare–the deductible has gone up over ten times, coverage has been reduced and premium has gone waaaay up.

GotFreedom March 27, 2012 at 3:34 pm

Same here–while our pay is not going up (being maintained according to employer because their cost of business has gone up so can’t give out raises), the cost of our health care premiums has also gone up for less service/availability/access, etc. Now we don’t mind paying for ourselves/our family, but we will not pay increased premiums to cover the cost of those who leech off of us working class folks!

MT for re-redistribution March 27, 2012 at 5:38 pm

Well there you go, it didn’t cost you anything, just like uncle O said

Ursula March 27, 2012 at 10:45 pm

Our premiums have gone up, and while they haven’t said anything about no raises yet, the hospital I work for has spent over $200 MILLION implementing the new Obamacare-approved electronic health records software, so I am quite sure we’ll be getting nothing this year or next year either. Fun, fun, FUN!

MT for re-redistribution March 27, 2012 at 5:37 pm

That’s another reason why the feds should stay out of health care. They are so far removed from the citizen they are pontificating to, they can’t and won’t care. And the political breezes will steer our health care around and make it unmanageable. Corruption will drastically increase.

Justavet March 27, 2012 at 2:29 pm

Nancy Pelosi is ridiculous. She is out of touch with reality as witnessed by those statements, as well as many others.

She is another cause of the divide in this country. She is a name calling, party hack who has no morals or shame. I can’t remember a former Speaker being so confrontational, vile, as well as dismissive of the populace’s intelligence.

ol gator March 27, 2012 at 3:36 pm

peelosi is the wicked witch of the west !….”we must pass the HC bill in order to see whats in it” .. the woman needs a mental evaluation.. now!!

Mike C March 28, 2012 at 7:21 am

Let me try to be objective here. Nancy Pelosi is the about the dumbest person to reach high office, next to Joe Biden.
What is it with the libs that they seem so uneducated, or so simple minded? Talking to their masses? Watching her take questions is such a great comedy show.
Forget the fact she is so scary-ugly, but those 500 dollar haircuts (or wigs) look nice, I will give her that.

Star March 28, 2012 at 11:04 am

To me she looks peaked these days–her skin is stretched so tight you could read a Supreme Court decision through it.

kmbog March 27, 2012 at 2:30 pm

So what will the next step in the Dems game plan be in the intervening months before, hopefully, this Mandate is deemed unconstitutional? Would they go as far as to pass legislation condemning their own law to keep the Justices from actually labeling the Obamacare mandate as unconstitutional to ‘save face’. And which Dem would take the bullet for Obama? Quite a pickle the Dems got themselves into.

Justavet March 27, 2012 at 2:37 pm

By the way, please say it is so that the Healthcare Act is going to be struck down.

rawheadrex March 27, 2012 at 2:37 pm

Thanks again, Keith, for great coverage. I heard some Kennedy sound and he sounds very concerned about government’s use of coercion.

Keith Koffler March 28, 2012 at 12:32 am

Hadn’t listened to the sound, thanks. I think he realizes how momentous a step this would be.

judybeth March 28, 2012 at 2:14 pm

Keith, what I question is what is the Gov’t’s plan for individuals and businesses that are penalized $’s for not getting insurance, but none can afford to pay the penalities? Are US Marshalls going to arrest them and put them in jails? Did the POTUS and WH Advisers ever consider the next step after penalities are issued for non-compliance and still cannot be paid?

Cindy Lu March 27, 2012 at 2:39 pm

buh bye obama care (fingers crossed!)

Cindy Lu March 27, 2012 at 2:40 pm

testtestonlya test

Just2old March 27, 2012 at 2:44 pm

I guess they should have read it before they rammed it down out throat!

big fan March 27, 2012 at 8:14 pm

Ha ha! Witty!

srdem65 March 27, 2012 at 3:34 pm

If the Supremes strike down this act, we will hear a great sigh of relief from coast to coast.

ol gator March 27, 2012 at 3:44 pm

yes there will !! and i will be dancing a brand new jig !!! this has been a
real though thing to watch as it plays out.. the lies, the boasting,the utter deception from these rodents.. especially our lifetime pinocchio award recipient whose middle name is hussein..

big fan March 27, 2012 at 8:20 pm

this will not be the end. Progressives have set their sights on this for a VERY, VERY LONG TIME! They will not limp back to the white house with their tails between legs – you can bet they have a plan B,C, D, etc.

GotFreedom March 27, 2012 at 3:41 pm

We will continue to pray that the Justices will rely on their knowledge of the Constitution and be given the wisdom and understanding to discern the truth and to impartially make the correct decision and strike this down as they adhere to the law.

God Bless America. . .God Help America. . .now, more than ever!

MarjoJimbo March 27, 2012 at 3:59 pm


Lanie March 27, 2012 at 9:53 pm

It will take more than prayers since past Congresses, presidents and judges have all usurped their Constitutional authority and judges have been anything but impartial and objective.

And please tell me why God should bless a nation that has all but rejected him with a culture and laws dominated by vice rather than virtue and naturalism and humanism as state-sanctioned religions?

elm March 27, 2012 at 4:27 pm

If this is found to be unconstitutional will we all get a refund for the raising of our premiums thus far? My bill came yesterday and has gone up over $150 per month.

Keith Koffler March 28, 2012 at 12:33 am

The last thing they’d think to do . . .

MaryOhSoContrary March 27, 2012 at 4:37 pm

Our family premiums went $211 per month; pay did not. Co-pays on everything from office to ER to RX also up. All in anticipation of the heralded Patient Care and Affordability (ironically named, huh?) Act…so if the stars align and the Supremes STRIKE ObamaCare as unConstitutional…will everything “roll back” to preBarryCare prices? I crack myself up too…

Wiping the years away…what’s to say that _resident Executive Order will even acknowledge the SCOTUS? Can’t HE, Dear Leader, just “take over” the healthcare industry like he did student loans, the auto industry, the green initiatives…etc? More Kabuki Theatre of the absurd, and Obama will just implement anyway?

Susan March 27, 2012 at 7:41 pm

Ironically the student loan takeover was attached as a rider to Obamacare. Remember the old budget reconciliation trick Harry Reid used to pass the whole kit and caboodle? The Health Care and Education Reconciliation Act of 2010 was signed into law on March 30, 2010.

My guess is Obama will just ignore the ruling if SCOTUS finds it unconstitutional. He did the same thing to Judge Vinson on Obamacare and Judge Feldman on the drilling moratorium. Judge Feldman held the administration in contempt of court and even that didn’t phase the little dictator.

Lanie March 27, 2012 at 9:58 pm

Even if the court rules the individual mandate unconstitutional, it isn’t clear the rest of the act won’t remain.

Lizzy March 27, 2012 at 5:29 pm

Could it be possible that we might win once? To dream to,see that smug
little man feel defeat. Don’t want to be over confident but I can hope.

Anthony Quinn March 27, 2012 at 5:54 pm

There are about 50 different issues are coming to a head this year – the Election, Occupy and the NDAA, Iran, G8 and NATO, fuel costs, Afghanistan, the debt ceiling – just off the top of my head…
We’re in for a Long, Hot Summer

Susan March 27, 2012 at 8:58 pm

Great Paul Newman movie, Anthony. You are so right about that “Long, Hot Summer”, especially now that the EPA is effectively shutting down coal-powered electric plants. It will be even hotter when we either can’t afford electricity to cool our homes, or there is not enough electricity to go around. I see more than a few hot and sweaty Howard Beales shouting out their windows “I’m as mad as hell and I’m not going to take it anymore!”

MT for re-redistribution March 27, 2012 at 6:04 pm

Great damage has already been inflicted on the people. I mean, beyond the obvious damage done by this whole administration regarding class warfare, deficit explosion, encouraging uselessness, etc. The insurance industry was already a pit of vipers, now the amount of chaotic restructuring that was done has invited in that much more corruption. A friend who works for a small insurance company just surviced a 28 person layoff due to the fact that restructuring greatly favored big companies. On and on, this imbecile keeps making the US weaker with every day. God help us.

langley barfly March 27, 2012 at 8:12 pm

If ‘Pres.’ Obama is a “Constitutional Professor/scholar” (?) why doesnt he come out and give the Nation a lecture on why his ‘health care plan’ is good for America…???

Keith Koffler March 28, 2012 at 12:34 am

Be careful what you ask for, LB.

Star March 28, 2012 at 11:08 am

He was a lecturer not a professor, as I understand it. He never schools us on the Constitution–weird, huh?

Lanie March 27, 2012 at 9:48 pm

It really is another Ponzi scheme like Social Security. The healthy young will subsidize the unhealthy, getting nothing in return until they age and become unhealthy where the next generation subsidizes them. In the meantime, the rules will change and like Social Security, the first ones in get the greatest benefit while the succeeding generations pay more and receive less.

Wigglesworth March 27, 2012 at 10:57 pm

Obamacare is still a disaster if the mandate is struck down and everything else remains law.

Star March 28, 2012 at 11:07 am

They are already maneuvering to make that happen…. then the insurance cos will gradually fold and oh, look, we need universal.

Alan Ladd March 27, 2012 at 11:19 pm

(Damn! I was going down to the SCOTUS building to protest but my Volt wouldn’t start)

Girly1 March 28, 2012 at 12:09 am

I’m curious as to whether or not ‘debtor’s prison’ is still in the works for those who either can’t afford or refuse to pay the fine for exercising their First Amendment rights,

PennyBeach March 28, 2012 at 6:30 am

So if the law is struck down, O can sing Sitting on the Dock of the Bay(wasting time) by Otis Redding. His adoring press will be throne a bone to help quell their outrage.

Lizzy March 28, 2012 at 8:41 am

Even if this mess is overturned think of the mess and waste left in it’s wake.
So much has changed in anticipation of this abomination I doubt it can be undone. So he will have just made a bad situation worse. No refunds for
higher premiums or getting your Dr back that quit taking Medicare patients the
list is endless. So even if he does get hoisted on his own petard he will leave
a giant mess, one of many.

AZ Granny March 28, 2012 at 9:20 am

Good points, Lizzy. They can’t just roll back prices like Wally World or wave their magic wand to repair the damage. Our health insurance premiums nearly doubled, our co-pays increased and my husband’s employer stopped offering a variety of plan choices. One of our family doctors didn’t just stop accepting Medicare patients, he closed his practice entirely.

Susan March 28, 2012 at 11:40 am

My doctor for the past 13 years closed her practice rather than be forced to turn away her Medicare patients. That is the progressive’s game plan. Imbed this disastrous law into the health care industry to the point where it is near impossible to reverse it, even if the courts strike it down. My doctor will never re-open her practice and the federal government has permanently crippled the world’s best health care system.

Wigglesworth March 28, 2012 at 9:14 am

It’s going to be fun watching all these drug companies and hospitals squirm if the mandate is declared unconstitutional, but the rest of the law remains intact. It serves them right for making all those sleazy deals with Obama and democrat lawmakers in 2009 and 2010.

AZ Granny March 28, 2012 at 9:41 am

Thanks for that link. Brings to mind this old quote “if you get into bed with a snake you know you’re going to get bit.” Unfortunately, they got into bed with the snake and the taxpayers are the ones who got bit.

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