This column by ACRU Senior Legal Analyst Ken Klukowski was published Novembr 14, 2011 on The Washington Examiner website.
So, the Supreme Court will decide Obamacare’s fate. After two years of political and legal battles, our highest court will decide whether to strike down all or part of Obamacare, or whether the federal government can claim unlimited power over each of our lives.
On Nov. 14, the Supreme Court granted review (called “certiorari” or “cert”) of several petitions arising from the Obamcare mega-case from Florida. This lawsuit was brought by 26 states and the National Federation of Independent Business (NFIB). The case has been renamed NFIB v. Sebelius, and is one for the history books.
The heart of the case is whether Section 1501 — the infamous “individual mandate” requiring almost all Americans to buy and maintain federally approved health insurance — is unconstitutional.
The Obama administration is represented by Solicitor General Donald Verrilli. The states are represented by former Solicitor General Paul Clement, a partner at Bancroft LLC. And NFIB is represented by Jones Day partners Michael Carvin and Gregory Katsas.
The Court granted extended argument time for several questions from the cert petitions on this monumental case.
First, the Court will determine whether federal courts have jurisdiction to even hear this case before the individual mandate goes into effect in 2014. If the mandate is a tax, then it falls within the Anti-Injunction Act, and all these cases will be dismissed. If that happens, lawsuits must start over again in 2015, when Americans file their year 2014 tax returns.
Second, the Court will determine if the individual mandate is unconstitutional. At issue will be whether Section 1501 is authorized by the Commerce Clause, Taxing Clause and/or the Necessary and Proper Clause of the Constitution. If it’s not authorized by at least one of those three, then under the 10th Amendment the mandate is unconstitutional.
Third, the Court granted review on the 26 states’ claim that Obamacare’s massive expansion of Medicaid violates the 10th Amendment by coercing the sovereign states, exceeding Congress’ authority under the Constitution’s Spending Clause.
Fourth, if the individual mandate is struck down, the Court will decide whether Section 1501 can be severed from the other 450 sections in the 2,700 pages of the Obamacare statute.
The Court could completely sever Section 1501, preserving 99 percent of Obamacare. Or it could strike down additional provisions as being too intertwined with the mandate to be separated. Or the Court could strike down all of Obamacare in a single blow.
The Court also is not taking two other Obamacare cases. The first is Liberty University v. Geithner, the lawsuit brought by Liberty’s law school dean, Matt Staver, who is also chairman of Liberty Counsel. The other is Thomas More Law Center v. Obama.
The Court will decide in two weeks whether to take Virginia Attorney General Ken Cuccinelli’s lawsuit, Virginia v. Sebelius. But if it does, the case will be limited to a jurisdictional question and will not impact the Obamacare fight.
NFIB v. Sebelius is the culmination of a 40-year struggle. After four decades, the central government finally managed to ram through a takeover of one-sixth of the U.S. economy — a sector literally carrying the power of life and death.
A majority of the states in the Union banded together with small business owners, represented by the finest lawyers in America, to push back against this breathtaking power grab, arguing that the Supreme Law of the Land does not permit the central government to wield such absolute power over the lives of American citizens.
This epic battle will occur next spring, with a decision likely in June 2012. If the Supreme Court upholds Obamacare in its entirety, then the United States will cease to be a nation of limited government.
And so it begins.