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Solicitor General Katyal’s Advice to Those Who Don’t Like Individual Mandate: “Make Less Money”

On Wednesday, June 1, 2011, the case of Thomas More Law Center et al v. Barack Hussein Obama, President of the United States, was heard in the sixth district circuit court of appeals by Judge Boyce F. Martin, Jr. and Jeffrey S. Sutton, and United States District Judge James L. Graham (Southern District of Ohio), sitting by designation. The case is pending an appeal on the part of the plaintiffs in response to the circuit court’s dismissal regarding the charges challenging the constitutionality of the Patient Protection and Affordable Care Act (commonly referred to as Obamacare).

Opening remarks can be heard here. The government’s motion to dismiss can be heard here. Arguments of merits of the case can be heard here.

Neal Kamur Katyal, the acting solicitor general, made the arguments on behalf of the government to attempt to persuade the court to dismiss any appeal of that might be made by the plaintiffs. During the course of arguments being presented, Judge Sutton asked Mr. Katyal if he could name one Supreme Court Case, a case that posed the same question being posed by the mandate included in PPACA, in which the Congress used the Commerce Clause of the U.S. Constitution as a tool to compel action.

According to this source, here’s what ensued in during that portion of court arguments….

Kaytal conceded that the Supreme Court had “never been confronted directly” with the question, but cited the Heart of Atlanta Motel case as a relevant example. In that landmark 1964 civil rights case, the Court ruled that Congress could use its Commerce Clause power to bar discrimination by private businesses such as hotels and restaurants.

“They’re in the business,” Sutton pushed back. “They’re told if you’re going to be in the business, this is what you have to do. In response to that law, they could have said, ‘We now exit the business.’ Individuals don’t have that option.”

Kaytal responded by noting that the there’s a provision in the health care law that allows people to avoid the mandate.

“If we’re going to play that game, I think that game can be played here as well, because after all, the minimum coverage provision only kicks in after people have earned a minimum amount of income,” Kaytal said. “So it’s a penalty on earning a certain amount of income and self insuring. It’s not just on self insuring on its own. So I guess one could say, just as the restaurant owner could depart the market in Heart of Atlanta Motel, someone doesn’t need to earn that much income. I think both are kind of fanciful and I think get at…”

Sutton interjected, “That wasn’t in a single speech given in Congress about this…the idea that the solution if you don’t like it is make a little less money. (emphasis mine)

That’s Katyal advice to all of us that don’t like the mandate or consider it unconstitutional…make less money. Then we can supposedly file for health care under hardship provisions…or can we?

The so-called “hardship exemption” in the health care law is limited, and only applies to people who cannot obtain insurance for less than 8 percent of their income. So earning less isn’t necessarily a solution, because it could then qualify the person for government-subsidized insurance which could make their contribution to premiums fall below the 8 percent threshold

I don’t make any claims to being an economic expert, but…do these ideologues really think about what they are saying when they make comments like this? We should just give up on our economy? Settle down to making less money? And our government will somehow generate the funds that will allow it to provide for the needs of all of us??? This solution is so far removed from reality as to be laughable. It’s totally ludicrous to think that this type of approach has any chance of succeeding at all. When people like Mr. Katyal make these kinds of comments, they reveal an ideological purity in themselves that makes them sound and look idiotic, to say the least.

Continuing on with the court arguments, Mr. Katyal is still using the “health care market is unique” argument to try to defend the mandate. This line of logic runs along the lines that “everybody will eventually participate, and with the mandate, what Congress is regulating is not the failure to buy something but failure to secure financing for something everyone is going to buy.”

It’s convoluted logic at best that didn’t particularly impress the judges in the case because it didn’t address the question of “where are the limits”. That’s an important question…where are the limits as to what extent this legislation grants to Congress the power and precedent to mandate purchase of government-specified items via the Commerce Clause for the purpose of regulating the activity or inactivity of individual citizens.

It is this single question regarding the limitation of power that the Obama administration still has not answered, even though this question has been asked repeatedly now during the course of several court hearings.

Maybe they don’t want to answer it? Or at least….not truthfully.

The Sixth Circuit Court of Appeals has not made a ruling on this case as of yet.

The 11th Circuit hears the case next week brought by 26 states led by Florida.

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