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Obama’s first lose-lose Obamacare-related argument today.

By: Moe Lane (Diary)  |  March 26th, 2012 at 11:00 AM  | 

RESIZE: AAA

The first round of the US Supreme Court’s attempts to settle the problem that is Obamacare takes place today, and from the Obama administration’s purely partisan (and particularly puerile) perspective, there’s no winning scenario available. Essentially, what’s happening today is the courts are hearing arguments about whether or not Obamacare’s individual mandate qualifies as a tax. If it does qualify as a tax, then under the provisions of the Tax Anti-Injunction Act (TAIA) the mandate cannot actually be challenged in courts until it’s actually been collected; more plainly, you can’t sue for relief from an onerous tax before they take it from you.

The merits of the case are one thing – the above link from Heritage goes into the whole issue, in some detail – but the partisan implications are another. There’s no good result for the Obama administration: if the Supreme Court decides that the individual mandate is not a tax then a large portion of the administration’s existing arguments goes away, thus increasing the likelihood of a humiliating disposal (at least in part) of the one thing that Obama has managed to do domestically in four years. But if the mandate is a tax, then Obama gets to face a plethora of attack ads in the fall which will be (accurately) portraying him as a shameless serial liar who used the looming Obamacare legislation to sneak in a stealth tax on the American middle class.

:shrug: I can work with either scenario.

Moe Lane (crosspost)

PS: There is nothing deeply, deeply ironic about the fact that the President opposed the mandate as a candidate. Or, as American Majority put it:

Contrary to popular belief, a fundamental inability to live up to the job is neither particularly ironic nor particularly not ironic. It simply is.

PPS: If you’re wondering why either side got involved in this argument in the first place, well… neither one brought it up in the first place (the states don’t want to wait to destroy Obamacare, obviously). The court had to assign somebody to argue that TAIA applied in this case.

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  • http://en.wikipedia.org/wiki/Elizabeth_Jacobson get2djnow

    I can’t wait until Obozo and friends have to argue that the lack of a severability clause doesn’t invalidate the whole thing once one part of it goes down. Do they think the court is just going to completely overlook the fact that almost every bill that goes through Congress gets a severability clause?

    I’m actually going to enjoy the next few days. Even though I know that O’Romneycare can’t beat his way out of wet paper bag.

  • lineholder

    excited about these hearings. It could go either way, and I know that, but the Dems did a massive snow job on the American people to get this monstrosity passed into law. And when it comes a well-constructed piece of legislation and a badly-constructed piece of legislation….O-care is the latter of the two.

    The Dems went out of their way to weave a web of deceit to make O-care look good, and I suspect that as these hearings unfold, that web will become unraveled.

    Looking forward to it, and it’s about time.

    Keep us updated, if you will.

  • lineholder

    I followed through with your link and read what Heritage had to say about the matter. Do you think SCOTUS could actually try to “kick the can” on this one?

    Also, Heritage implied that SCOTUS might actually look at the cost elements of O-care and take that into consideration. Is that normal in a case of this sort?

  • acat

    as though it has a severability clause… simply because they can review and interpret the law.

    I agree, it’s a *potential* problem, but I’m going to take a watch-and-wait.

    I’m honestly surprised the Supremes are going to hear arguments before the elections, thought for sure they’d punt….

    Mew

  • lineholder

    by interjecting AIA into the hearings, SCOTUS may be trying to punt. It wasn’t planned. Neither side brought it up. SCOTUS did. With a third court-appointed lawyer.

    Is there any precedent for that kind of action on the part of SCOTUS that you know of?

  • http://moelane.com/ Moe Lane

    Aside from everything else, I have no real way of knowing what Justice Kennedy will be having for breakfast on any given day.

  • acat

    to those who have large student loans …

    By “punt”, I meant “wait until after the election and then follow the will of the people”… I find it surprising that they’re starting arguments this early, when *clearly* it will affect the election.

    Bear in mind that the Supremes aren’t like an appellate court .. they don’t have to limit themselves to the arguments the two sides bring up… as the final arbiter, they can bring up ideas from further afield.

    This is why taking a case to court – and especially to the Supreme court – is a roll of the dice … so much depends on factors out of control of the plaintiff and defendant… as Michael Hammond put it much depends on what Justice Kennedy has for breakfast.

    That’s a gross oversimplification, but .. much does come down to what the various clerks have to say.

    I’m still watching for the punt – either a decision to not be rendered until December or something else that gets the courts out of the line of political fire… but it could be that the Roberts Court is something different.

    Mew

  • lineholder

    more in the context of existing precedent. Is it normal for SCOTUS to review costs of a piece of legislation? Is there any case in which a precedent has been set for them to consider this part of it?

    Perhaps I’m reading the Heritage article incorrectly, but it did seem to communicate that SCOTUS is actively pursuing the point of AIA first, and that it could consider postponing any further decisions until 2015, after tax elements of O-care go into effect. But before SCOTUS makes a decision to postpone, it may also consider the cost elements, i.e. such things as the most recent CBO report that the implementation cost of O-care will be much higher than originally projected.

    I was just wondering if this normal procedure for the court. That’s all.

  • snowshooze

    I was certain the war would start right when that fell as the 1099 requirement for all vendors expenses down to $600.00 was going to be a burden to everyone, and so they cut that loose. Extricated. Severed.
    As it was part of PPACA , that should have started the fight.
    Now it has passed unchallenged, we may have a problem.

  • spinoneone

    If you want to “jump ship” for a minute, Hans A. von Spakovsky has an interesting look at the Court’s timing for arguments. Comments, as well, on the who and why regarding presenters.
    http://pjmedia.com/blog/obamacare-at-the-court-a-guide-to-the-proceedings/

  • renl57

    Another point the GOP could make is that the ObamaCare penalty-a-k-a-tax can’t possibly work at its current low level and would have to be raised sharply.

    IIRC, the ObamaCare penalty for noncompliance with the mandate is just a few hundred dollars. So someone who isn’t wealthy may well elect to just pay the penalty rather than spend thousands of dollars in premiums for individual health insurance.

    That means that the whole purpose of the mandate–bring enough people into the system whose premiums can pay for guaranteed issue and community rating–will fail to work.

    It’s obvious what Democrats would do to “repair” this problem in Obama’s second term: Raise the penalty/tax.

    I have individual health insurance and my premiums are nearly $7,000 per year. How high a penalty would you need to impose to force people into spending that much money every year? That’s how high the penalty will end up going.

  • acat

    I was surprised the Dems were dim enough to slide that in.

    Does severability really mean that a law, once enacted, cannot be modified by future laws? I do not think that’s the case…

    Mew

  • lineholder

    Just in reading through the comments, I found a link to even more information. Good stuff as well. Displays the legal arguments being presented to SCOTUS in a visual diagram.

    http://ohpcenter.org/writings-handouts.php

  • http://www.thestandardcandle.com Justin Spagnolo

    as far as I understand… severability requires the defenders of the law to make the case that the law may stand as constitution if the “unconstitutional” parts can be severed and the law can remain effective.

    in my layman’s understanding, I presume that since you can’t sever the mandate from the law without making the law wholly ineffective (as the mandate is the glue that holds it all together) then SCOTUS can’t just strike down the mandate (if presuming they deem the mandate unconstitutional) without striking down the whole law. But SCOTUS will let us know if they agree with that premise or not…

  • Scope

    The Anti-Injunction portion of the hearing today I believe was brought up by the SC itself, and is why they brought in a third party to argue the “ripeness” issue. I believe it was the feds who tried to argue the “ripeness” issue in one or more of the lower court hearings. According to this article every lower court ruling rejected the ripeness issue. Apparently the feds dropped it. No doubt the justices are going to be reading every word of the lower court rulings, and possibly wanted to insure that the issue was addressed right from the start. In the linked article, Atty Rivkin argues that the mandate is not a tax, it is a penalty. The only connection to taxation that it has is that it is collected by the IRS, in the form of withholding the penalty amount back from any refunds of those that are deemed a violator.

    Remember back during the Ocare debate, not only Obama, but other liberals argued that it was a penalty, and that it was not a tax. As Moe said, Obama loses either way. I’ve also read some arguments way back when, that Congress has taxing authority by the Constitution, but they do not have penalty authority, and especially penalties for not doing something.

    I’ve been reading a lot about the justices over the weekend. Atty. Rivkin said on Fox this weekend, that Kennedy actually is one justice that has more consistently decided on the side of Federalism. From what I am reading/hearing is that it will be Roberts and Scallia that have more often ruled for wide Congressional powers in past cases, some even before they were on the high court. I’m more concerned as to what they had for breakfast than Kennedy. I will try to find the 25 page pdf document that gives a tremendous amount of info on each of the justices, and how and why they have ruled on cases in their tenure. It was kinda disturbing to read the term used with Roberts and Scalia as to the being “new federalists.”

  • JSobieski

    nt

  • sharrondeer

    It’s not part of either side’s case. The SCOTUS chose to have a third party argue the tax case.

  • streiff

    this statement is simply wrong. The entire oral argument today was on that issue. And tomorrow the government will argue that it is a tax despite arguing today that it isn’t.

    I’m close to fed up with your inaccurate, irrelevant, and ill thought out drive-by comments. I suggest your next comment break the pattern you’ve set thus far.

  • sta46

    *communist in charge
    scolded the supremes at the SOTU a while back I have wondered on several occasions just how badly Scallia might want to smack that puerile poseur right down. I do not believe he would violate his oath or the law but he might be inclined to take a look from a more conservative point of view on this one thanks to little barry’s unbridled arrogance and blatant distain for our laws in general.

  • Scope

    was included in the House passed version of Obamacare. It was included in the original draft of the Senate version, but for some reason, in the smoke filled back D rooms, it was removed. I believe that planned on including it back in when the did reconciliation. When the bills were reconciled, and the severability clause would be added back in, it would have had to go back to the Senate for another vote, because Scott Brown was seated when the second vote would come up. Brown vowed to be the vote to kill Obamacare. They had no way to add it at that point. Obama signed the law without the severability clause.

    The Fla. trial judge, Robert Vinson, based on there being no severability clause, declared the entire law to be unconstitutional. The apeallate court in Atlanta ruled that the individual mandate was unconstitutional, but they did not rule the rest of the law had to fold. I am unaware if the SC has ever just added a severability clause back into a signed law, but I highly doubt it. I think that portion of the hearing will take place on Wed.

    If the mandate falls, which most believe where it will fall if it does at all, the rest of the law is unsustainable. Remember the first year the insurance companies had to start not denying people because of pre-existing conditions, and children up to 26 could stay on their parents insurance? Without the individual mandate, where even young and healthy people must participate, the health insurance companies will immediately go bust, or premiums will skyrocket even more, as no one will buy insurance until they get sick.

  • Scope

    Bryer, one of the liberal justices, today pointed out that the law clearly states “penalty”, and that no where in the law is it referred to as a “tax.”

    Alito (I think) remarked to Borelli, the fed. atty, that today he was before there arguing that it is not a tax, but that it is a penalty. He said, but tomorrow you will be back before us arguing that it is in fact a tax.

    Ha, the Congress has taxing authority under the constitution, but they do not have penalty authority in the way they are levying the penalty. It appears that the feds believed they could argue the taxing angle simply because the penalty is levied by the IRS on tax return refunds. What happens if you don’t get a refund I wonder? Would they send you a bill? What happens if you don’t pay the bill? If the IRS is just acting as a collection agency, could they put you in jail for non-payment?

  • Flagstaff

    It will be up to the Republicans to take advantage of the situation.

  • Finrod

    .

  • Scope

    have no clue at all. It would be wise to go back and do some research before you open your mouth any further, and remove all doubt that……..

  • acat

    to the Arabs…

    When it comes to missing opportunities, that is.

    Mew

  • http://www.thestandardcandle.com Justin Spagnolo

    nonetext.

  • sulmak

    that is not an income tax, and therefore not allowed for by the sixteenth amendment?

    So then there would be a clear precedent ruling it unconstitutional in Pollock v. Farmers’ Loan & Trust Co.

  • lapert

    Actually, she clearly demonstrated she had a clue – although an imprecise one. The argument today that it is a ‘tax’ as far as the Anti-Injuction Act is concerned was being argued by a third party appointed by the Supreme Court since neither side is arguing that case. Both the government and the parties challenging the law argues that the AIA doesn’t apply – and neither of them argued that this decision has any implication for the one over taxing authority.

    That the government is claiming that the mandate falls under its taxing authority isn’t really the same thing as it being a tax (there are other penalties and such that are not taxes but fall under taxing authority). It may sounds like hair splitting to the general public so it may still make for nice campaign fodder but from a legal perspective, it really is a completely separate issue.

  • Flagstaff

    A lot has been written about how Romney has spent so much money running negative ads about Newt and Rick, and how that’s the only reason he’s ahead.

    Makes me feel a little better that we might have a candidate who knows how to run successful negative ads. We’ve been (^;^) really weak in that area recently.

  • windwaker24

    And I don’t think our side did so hot either. Maybe I’m being to hard on them but they dropped the ball in several places on the tax/penalty issue and the Medicaid issue. First no one use Obama’s own words or the fact that the word tax did appear in the first draft of the bill then later removed and replaced with penalty. I heard several places where both could have been said, yet not a word from our side.

    Next with Medicaid issue, it was fumbled and not seemingly well-thought out. At one point, one of the female justices cornered our side with something like “Isn’t everyone who is eligible for Medicaid going to take it, therefore not subject to the penalty?” Our side answered, “I don’t know”. I DON’T KNOW??!!! He could have brought up the fact that some hospitals won’t take Medicaid or some people just don’t want to be dictated to by the government. But to answer, “I don’t know” was a foolish answer and a missed opportunity.

  • windwaker24

    Don’t know why that happened…

  • greyeagle

    Remember the way Obama insulted the Justices during a State of the Union address. I doubt they have forgotten. This mess may come back to bite Obama in the butt.

  • JX12

    I do, however, wonder if Obama’s smack-down at SOTU will leave any lasting impression on Kennedy.

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