March 28, 2012
Washington, DC – Today marks the final argument at the Supreme Court, during which the Court will focus on Medicaid expansion and states rights and severability. Under ObamaCare, some states will be required to expand Medicaid coverage as much as 50 percent. The economic impact will be crushing. The second issue will be whether the Court can sever the individual mandate from ObamaCare, while allowing the rest of the law to remain in effect.
While you can never be sure of the direction of the Justices based solely on oral argument, it appeared that a majority of Justices yesterday were opposed to the individual mandate. Justice Thomas’s past opinions suggest he would vote that the government lacks authority to pass the mandate. Justices Scalia and Alito asked questions indicating disapproval of the mandate. Chief Justice Roberts was a little less revealing, but he appears to have serious problems with the mandate because it would open up unlimited power by the federal government. Justice Kennedy was one of the more vocal questioners, and he appeared to have serious doubts about the mandate. On the other side, Justices Ginsburg, Breyer, Sotomayor, and Kagan were clearly in favor of the mandate and are willing to give the government shockingly expansive power.
There are three legs to ObamaCare: (1) coverage for pre-existing conditions, (2) elimination of community rating, and (3) individual and employer mandates. The first two legs were tried by seven states and all seven failed, resulting in the repeal of their laws because of the economic ruin they caused to insurance carriers. Massachusetts was the eighth state but added the individual mandate to force more people into the insurance pool to offset the economic impact of the other two legs. ObamaCare incorporates all three legs. If the mandate is struck down and the law is allowed to remain in effect, the result will be a collapse of the private insurance industry. The mandate is like a motor in a car. The mandate is essential to ObamaCare, and, if struck down, ObamaCare must be struck down or, at least, immediately repealed to avoid economic disaster.
Mathew Staver, Founder and Chairman of Liberty Counsel said: "While I was pleased with the oral argument, I don’t think anyone can be absolutely sure which way a majority of Justices will vote. It is frankly disturbing to see such a divide on the Court over a constitutional principle that should be obvious to any objective scholar of the Constitution, unless, of course, the Constitution no longer means what it says. I believe the words and the intent of the Constitution should be given their original meaning, and thus, for me, the decision is easy. The Constitution is the contract with the American people, and we must honor its terms. To uphold ObamaCare, you would have to rewrite the Constitution. A decision upholding ObamaCare will do serious damage to the integrity of the Supreme Court."