- The Foundry: Conservative Policy News from The Heritage Foundation - http://blog.heritage.org -

Obamacare's Two-Year Anniversary

Posted By Elizabeth Slattery On March 23, 2012 @ 12:00 pm In Obamacare | Comments Disabled

Today marks the two-year anniversary of President Obama signing into law the Patient Protection and Affordable Care Act, which will go down in the history books as “Obamacare.”

With the Supreme Court poised to hear oral argument in the 26 states’ and NFIB’s challenge to the Act next week, members of the House have been celebrating and lamenting the passage of Obamacare.  On the floor of the House Wednesday evening [1], Congresswoman Nancy Pelosi opined that the Declaration of Independence supports Obamacare because the Act “helps to guarantee…a healthier life, the liberty to pursue happiness, free of the constraints that lack of health care might provide to family.”  Meanwhile, Congresswomen Michelle Bachmann continues to call on Congress to repeal Obamacare [2], arguing that it is an issue “that should be decided by the legislators” rather than the Court.  Whether the High Court strikes down or upholds part or all of Obamacare, a new Heritage Backgrounder [3] makes the case that Congress will still need to take some action in response to the Court’s decision.  This latest report provides a roadmap of the four issues before the Court and the justices’ various options regarding each issue.

First up, does the Anti-Injunction Act (AIA) bar the parties from challenging the individual mandate to purchase health insurance before it goes into effect?  Heritage experts Robert Alt and Ed Haislmaier argue that it’s unlikely the Court will decline to reach the merits of the case and find that the AIA prohibits the current challenges, especially given the fact that the government and the challengers agree the AIA doesn’t apply.  However, if the Court fails to reach the merits now, this would not preclude another challenge once the mandate goes into effect.

The second issue is:  has Congress exceeded its constitutional authority in enacting the individual mandate?  Alt and Haislmaier point to the Court’s Commerce Clause jurisprudence, noting that even during the Great Depression and both World Wars, “Congress never sought to require the purchase of” any good.  Further, Alt and Haislmaier argue that the consequences of upholding the mandate would have “drastic legal effects far beyond th[is] case” despite the fact that the government maintains that health care is “special.”

Third, if the mandate is unconstitutional, can it be severed from the remainder of the law, or does the entire law fall with it?  Alt and Haislmaier lay out the various scenarios if only the mandate falls, if the mandate and related provisions fall, and if the entire law falls. The first two scenarios are problematic because Obamacare cannot operate as Congress intended without the mandate.  And if the Court starts down the road of trying to figure out what is related to the mandate, there is  “no clear and compelling logic for how and where” to draw a line between the provisions that remain and those that are severable.

The last issue before the Court is:  did Congress unconstitutionally coerce the states into accepting onerous conditions that it couldn’t directly impose by threatening to withhold federal funding under Medicaid?  Alt and Haislmaier maintain that the Court could simply avoid this issue if it finds the mandate unconstitutional and strikes down all of Obamacare, or strikes down the mandate and enough of the Medicaid provisions which won’t operate as Congress intended without the mandate.  But if the Court gets to this question and chooses to uphold the Medicaid expansion, this would further erode “what remains of state autonomy and sovereignty” and essentially reduce the states to the “roles of tax collectors.”  By contrast, if the Court invalidates this expansion, Congress would likely need to reconsider “the design and operation of Medicaid as it currently exists.”

Some have guessed how the justices [4] might vote, and the six hours of oral arguments next week may provide a glimpse into some of the justices’ minds.  But let’s hope that by this time next year, instead of celebrating Obamacare’s third anniversary, Congress will have replaced it with Heritage’s commonsense plan [5] to fix our bloated, overextended and unrestrained government and save the American Dream.


Article printed from The Foundry: Conservative Policy News from The Heritage Foundation: http://blog.heritage.org

URL to article: http://blog.heritage.org/2012/03/23/obamacares-two-year-anniversary/

URLs in this post:

[1] On the floor of the House Wednesday evening: http://www.theblaze.com/stories/pelosi-defends-obamacare-using-declaration-of-independence/

[2] call on Congress to repeal Obamacare: http://cnsnews.com/news/article/bachmann-says-obamacare-repeal-should-be-decided-congress-not-court

[3] a new Heritage Backgrounder: http://www.heritage.org/research/reports/2012/03/the-obamacare-challenge-the-questions-before-the-supreme-court-and-their-portents-for-congress

[4] have guessed how the justices: http://blog.heritage.org/2012/03/19/obamacare-debate-comes-to-heritage/

[5] Heritage’s commonsense plan: http://www.heritage.org/research/reports/2011/05/saving-the-american-dream-the-heritage-plan-to-fix-the-debt-cut-spending-and-restore-prosperity

Copyright © 2011 The Heritage Foundation. All rights reserved.