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Obamacare – Where Are We?

We are all aware that the Patient Protection and Affordable Care Act (PPACA), commonly called Obamacare, is being debated this week at the US Supreme Court. While I am not a lawyer (or even played one on TV), I want to bring two points to your attention.

Justice Elana Kagan

Supreme Court Justice Elena Kagan was present to hear arguments about Obamacare. She gave no indication she would recuse herself from judging Obamacare, even though she had cheered its enactment, is an Obama political appointee, and personally assigned her top deputy in the Obama Justice Department to defend the law in federal court. Federal law 28 USC 455 says a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned” or anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”    [emphasis mine]

During her confirmation process in the Senate Judiciary Committee, Kagan assured the committee in written responses to its questionnaire that she would follow the “letter and spirit” of 28 U.S.C. 455. And here is some information that Kagan supplied during her Senate confirmation hearing after being nominated for the Supreme Court. She was given a 13 question questionnaire, and she responded in writing: Had she ever been asked her opinion about the merits or underlying legal issues in Florida’s lawsuit against Obamacare, and: Had she ever been asked her opinion regarding any other legal issues that may arise from Pub. L. No. 111-148? To both questions she responded “no.” But evidence suggests otherwise.

So the question is, “What part of 28 USC 455 does she not understand?” She qualifies for recusal under at least three provisions of 28 USC 455. Further, she said that she would follow the letter and spirit of the law. Further, when asked if she had been asked about Obamacare, she said no. Yet her responses were demonstrably false.

When questioning attorney Paul D. Clement (who was presenting an oral argument on behalf of 26 states seeking to have the federal health care law declared unconstitutional) Kagan said, “The exact same argument so, so that really reduces to the question of: why is a big gift from the federal government a matter of coercion? In other words, the federal government is here saying: we’re giving you a boatload of money. There are no, is no matching funds requirement. There are no extraneous conditions attached to it. It’s just a boatload of federal money for you to take and spend on poor people’s healthcare. It doesn’t sound coercive to me, I have to tell you.” She actually said that!

The Individual Mandate

Yesterday (March 28, 2012) Justice Antonin Scalia asked Obama’s solicitor general a fundamental question about the Obamacare mandate: “What is left? If the government can do this, what else can it not do?” Scalia asked the question of Solicitor General Donald Verrilli on the administration’s claim that forcing people to buy health insurance is justified by the clause in Article 1, Section 8 of the US Constitution, specifically the third clause, which states: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In the “stretch” department, Verrilli argued that by not purchasing health insurance Americans are really participating in health-care commerce because by not buying insurance they are having an “effect” on interstate commerce in health care. Verrilli’s unstated assumption is that not buying health insurance is an “economic activity.” Scalia pointed out to Verrilli that the administration’s argument seemed to take no cognizance of the Tenth Amendment.

Justice Anthony M. Kennedy said that “…you don’t have the duty to rescue someone if that person is in danger. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.”

So, following Kennedy’s reasoning, an ambitious and aggressive government, would literally be able to require anything, as long as it was for the “common good.” Where would this power end? Justice Sam Alito asked Verrilli if Congress could force young people to buy burial insurance because everyone is going to die someday. Chief Justice John Roberts asked Verrilli if Congress could force people to buy cell phones because it would facilitate contacting emergency services in the event of an accident. And Justice Kennedy asked Verrilli: “Can you create commerce in order to regulate it.”

Justice Scalia wondered if the mandate was confirmed, could destroy the very concept of limited government.

Where are we? With Kagan not recusing herself, who knows. We know that Kagan, Sotomayor, and Ginsberg are political hacks. All we can do is hope that at least five Justices view the mandate as unconstitutional, and therefore illegal.

But that’s just my opinion.

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