Posted on 03/04/2015 6:26:30 AM PST by SeekAndFind
On Wednesday, the Supreme Court will hear oral arguments in King v. Burwell, which will decide whether health insurance subsidies should be available nationwide or only in those 16 states that established exchanges. Several questions have recently emerged over the legitimacy of the plaintiffs’ case, including issues of jurisdiction and congressional intent, but there’s an even deeper flaw: The plaintiffs’ interpretation would render the statute unconstitutional.
Several of my colleagues and I made this case in an amicus brief to the Court. If the plaintiffs’ interpretation carries the day, then Obamacare has threatened states that failed to establish exchanges with virtually assured destruction of their individual insurance markets. And the Supreme Court held in the first Obamacare case that the federal government may not make that kind of extreme threat. Congress can't hold a gun to states’ heads in order to force them to implement federal policies.
This constitutional problem matters—maybe more than any other flaw in the plaintiffs’ case—because it puts the conservative justices in a bind. In general, conservative justices try to avoid second-guessing a statute’s text, even if the text leads to seemingly crazy results, and the plaintiffs have a case that the text of the Affordable Care Act compels their victory. But some conservatives on the bench, notably Chief Justice John Roberts, are also dedicated to a different and sometimes-contradictory principle: that they should not assume that Congress wrote an unconstitutional statute.
(Excerpt) Read more at newrepublic.com ...
Counter argument by Randy Barnett: “1) As a threshold matter, this constitutional concern seems misplaced in the case that is before the Court. First, 8 States filed amicus briefs in support of petitioners, saying they don’t want exchanges OR subsidies — so obviously those States aren’t being “coerced.” Second, neither party in this case has ever raised the constitutional concern, so we lack adversarial briefing on this issue. Third, if the relevant wording of the statute is unambiguous and this wording exposes the statute to constitutional attack in some later case, then so be it. This is similar to later Origination Clause challenges to the “individual insurance mandate” cum “option to buy insurance or pay a modest tax” that could only be brought once it was established that what looked like a Commerce Clause “penalty” was really a noncoercive tax. We must take up these matters one step at a time.”
Much more here. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/04/avoiding-constitutional-avoidance/
Where exactly did you get your law degree?
One doesn’t need one.
This is simple. The law requires you to buy insurance, with a penalty (a fine) if you don’t. there mere fact that this penalty is collected by the IRS does not make it a tax — it is still a fine for failing to buy something the law mandates that you buy.
Now, there are a couple of problems with this. First, there is no precedent for teh government being allowed to mandate the purchase of any product or service merely as an obligation of citizenship.
And the fact is that the Constitution does not at any point grant the Federal government any authority or power to act on the matter of healthcare.
Roberts himself says much of that throughout the decision, including saying on page 15 of the decision that the penalty is not a tax. Yet he comes to the conclusion that it’s constitutional under the taxing power.
http://abcnews.go.com/blogs/politics/2012/06/obama-in-2009-its-not-a-tax/
http://weaselzippers.us/118326-white-house-insists-obamacare-mandate-not-a-tax-its-a-penalty/
http://hotair.com/archives/2012/07/02/pelosi-obamacares-not-a-tax-its-a-ta-penalty/
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