The Supreme Court's Obamacare decision: Four constitutional questions

A vast faction of American consciousness still draws the line against federal government mandating the purchase of health insurance. The Supreme Court's job is to decide where the Constitution draws the line. Photo: John Marino

This is Part III of “Civil War at the Court,” a series on the Obamacare lawsuit at the Supreme Court. Read Part II here and Part I here.

OHATCHEE, Al., June 20, 2012 — Federal court has already deemed Obamacare, sometimes in whole and sometimes in part, “unconstitutional” more than once. Now, The Supreme Court, functioning within its appellate jurisdiction, must decide whether the last lower court’s decision should be affirmed or reversed.

The U.S. Court of Appeals for the Eleventh Circuit ruled that Obamacare’s individual mandate provision is unconstitutional, but also severable from the rest of the act, which they found to be constitutionally acceptable. This partly affirmed and partly reversed the decision of the U.S. District Court for the Northern District of Florida, which ruled the individual mandate to be unconstitutional and unseverable from the bill (meaning that the individual mandate is such a key part of the legislation that if removed, the entire bill is rendered useless).

GOD SAVE THE UNITED STATES: The Supreme Court especially serves as a preserver of the U.S. Constitution and America’s unique federalist structure, and as such it is steeped in symbolic tradition. At the opening of a Court session, the Marshal chants, “The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!” (Photo of the Supreme Court Chamber by John Marino).

Nevertheless, in their appeal to the Supreme Court, the States and private petitioners argued that the entire PPACA is unconstitutional, while the Obama administration argued that the entire PPACA is constitutional.

In the course of this debate there were four primary constitutional questions dissected at the Court, which pertained to the Anti-Injunction Act, the Individual Mandate, Severability, and Medicaid Expansion respectively.

1. Does the health care legislation enact a new tax, and therefore is the States’ et al. lawsuit barred by the Anti-Injunction Act, 2 U.S.C. 7421(a)?

When the Patient Protection and Affordable Care Act (PPACA, often shortened to Affordable Care Act or ACA) was being developed, its political proponents tried to make sure that the requirement to pay a penalty in lieu of buying healthcare coverage would not be characterized as a tax because of the negative political implications.

Ironically, if it could be demonstrated to actually be a tax, the case might be easy to dismiss until 2015 under the 1867 Anti-Injunction Act, which requires one to pay a federal tax before filing a lawsuit against it (thereby prohibiting the use of the courts as a tool to avoid taxation).

However, neither side of the case wanted to make the argument that the penalty constituted a tax under the anti-injunction statute, so the Court brought in a separate attorney, Robert A. Long, Jr., for that purpose. During the March 26th hearing, Justice Ruth Bader Ginsburg observed, “[there is an argument that] all this talk about tax penalties is all beside the point because this suit is not challenging the penalty. This is a suit that is challenging the must-buy provision, and the argument is made that, if, indeed, ‘must-buy’ is constitutional, then these complainants will not resist the penalty.”

Mr. Long countered that the issue of the penalty is in fact quite intertwined with the issue of the Individual Mandate, because the former is the means of enforcing the latter.

Because the Anti-Injunction issue is mostly a matter of legal technicality, it does not seem to be a very deciding issue for the Roberts Court determining the constitutionality of Obamacare. But it does reveal a vulnerable spot in the Obama administration’s argument for the expansion of federal power. Solicitor General Donald B. Verrilli, Jr. said during the March 26th hearing that “Congress has authority under the taxing power to enact a measure not labeled as a tax”.

“General Verrilli,” Justice Samuel Alito replied, “today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?” Verrilli admitted that this has never happened before, and throughout the rest of the hearing referred to the penalty as “the tax” (much to Justice Stephen Breyer’s bewilderment). The Health and Human Services et al. faction thus presented a confusing tax-for-constitutional-purposes-but-non-tax-for-statutory-purposes riddle for the Court to solve.

2. Is it unconstitutional (by way of exceeding the enumerated powers of the Commerce Clause, Article I Section 8 Clause 3 of the Constitution) for the federal government to require individuals to buy health insurance or else pay a tax penalty?

Yet much more compelling was the debate over the Individual Mandate during the March 27th hearing, which prompted entertaining analogies and hypotheticals from the conservative justices. Chief Justice John Roberts and Justice Antonin Scalia wondered where the line can be drawn against federal government overreach. Could the government require everyone to eat particular health foods (such as broccoli) or buy gym memberships in the name of benefiting the whole of society? How is such authority granted under the commerce clause of the Constitution?

The argument of the States remains that while the federal government has some constitutional authority to regulate things that people choose to buy, it simply does not make sense for the federal government to regulate something one does not buy (that is, require someone to purchase something).

“Can you create commerce in order to regulate it?” queried Justice Anthony Kennedy, the anticipated swing vote. Solicitor General Verrilli explained that this was not an issue at all, because the PPACA is about regulating not the purchase of health care but the means of purchasing health care, which “itself is economic activity with substantial effects on interstate commerce.” 

In otherwords, the Obama administration believes it is justified in regulating economic activity that is inevitably going to happen.

Justice Alito challenged the argument of inevitability by presenting this illustration to Verrilli: “All right. Suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said: You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money for it, you’re going to shift the cost to somebody else. Isn’t that a very artificial way of talking about what somebody is doing?”

Justice Breyer offered the argument that perhaps by being born, a citizen is already in the healthcare market without choice by nature of being a human being. Michael A. Carvin, the attorney for the petitioners and private respondents, countered that if that is the case, then Congress automatically has the power to “regulate every human activity from cradle-to-grave.”

Justice Scalia mentioned that it is really the insurance market, not the health care market, that PPACA is trying to regulate. “It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it,” said Scalia, “and that’s — that’s different from regulating in any manner commerce that already exists out there.”

The Obama administration continued to argue that Congress is functioning necessarily within the Commerce Clause with the new health care legislation - hence the reason why President Obama implied it would be judicially activist for the high Court to invalidate it. Chief Justice Roberts, ever mindful of what a hazardous tool bad precedent could be for future administrations, easily ironized this argument by saying, “once you establish that you have a market for health care, I would suppose Congress’s power under the Commerce Clause meant they had a broad scope in terms of how they regulate that market. And it would be — it would be going back to Lochner if we were put in the position of saying, no, you can use your commerce power to regulate insurance, but you can’t use your commerce power to regulate this market in other ways. I think that would be a very significant intrusion by the Court into Congress’s power.” 

While such risks might escape the casual observer, the Supreme Court justices have to view legislation and precedent through farsighted legal eyes. They must be aware that if they say “yes” to Obamacare now, they will have less reason to say “no” to any sort of expansion of its power in the future. Another feature embedded in the massive Obamacare legislation actually limits Congress’ own governing ability by enacting the Independent Payment Advisory Board (initially drafted as the Independent Medicare Advisory Board), a super-legislature that has newly-discovered loopholes which could allow its bureaucracy to evade Congress’ control. National Review calls the IPAB Obamacare’s “most unconstitutional provision.”

“The argument here,” said Justice Scalia on the subject of federal regulation of health insurance, “is that this may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left?”

In the Roberts Court’s unamimous 2009 decision in Bond v. United States, Justice Kennedy authored the opinion, in which he took the opportunity to expound on the value of the Constitution’s federalist principles. While states’ rights are an important component of federalism, Justice Kennedy argued, “the individual liberty secured by federalism is not simply derivative of the rights of the States. Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

The Federalist system, along with the written Constitution and check-and-balancing separation of powers, can be credited with slowing down America’s progression into socialism.

3. Can Obamacare be re-written with the presumably unconstitutional individual mandate edited out, or is that part unseverable from the rest of the bill?

When Clement explained (during the March 28th hearing) that the question before the Court was whether or not the PPACA could still “operate in the manner that Congress intended” with the individual mandate removed, Justice Sonia Sotomayor interjected, “No statute can do that, because once we chop off a piece of it, by definition, it’s not the statute Congress passed. So it has to be something more than that.”

The Washington Post’s Jennifer Rubin called the subsequent debate a “severability trainwreck” for Obamacare. The justices faced a balancing act of maintaining the integrity of judicial review while being careful to avoid infringing on the law-making role of legislators.

4. Is it unconstitutional (by way of violating the principles of federalism) for the federal government to require the States to expand Medicaid eligibility and subsidies?

On July 30, 1965, President Lyndon B. Johnson signed into law Medicare (a medical social insurance program) and Medicaid (a social welfare system that provides medical public assistance derived from tax revenues). While it is ultimately a federal program, the standards, rates, administering, etc. of Medicaid are placed in the control of the individual states.

As I mentioned in a previous article, the States argue that the Act “violates the Constitution by forcing the Plaintiff States to operate a wholly refashioned Medicaid program. The Act converts Medicaid from a federal-State partnership to provide a safety net for the needy into a federally-imposed universal healthcare regime,” thereby violating the Spending Clause and state sovereignty, and forcing the states to pay for something they do not think they will be able to afford.

As explained by Henry Perritt, law professor and former dean of Chicago-Kent College of Law, part of the plaintiff states’ concern about eventual required rise in state spending is based upon the statute’s requirement that state governments gradually begin covering the cost of the proposed Medicaid expansion (to covering about 10% of it by 2020), and the probability that if the states refuse to participate in the plan, the federal government will take away all of their share of federal Medicaid funding, which often makes up 25-40% of state budgets. 

The U.S. Court of Appeals for the Eleventh Circuit reasoned that Obamacare’s expansion of Medicaid is not unconstitutional because “[e]xisting Supreme Court precedent does not establish that Congress’s inducements are unconstitutionally coercive, especially when the federal government will bear nearly all the costs of the program’s amplified enrollments.” 

During the March 28th hearing, Justice Elena Kagan challenged the States with the question, “why is a big gift from the Federal Government a matter of coercion?” Paul Clement, the advocate for the States, argued that the provision which allows the secretary of Health and Human Services to cut off all federal funding for a state’s Medicaid program if that state refuses to comply with the PPACA is coercive. The States think that participation in Obamacare should at least be voluntary rather than mandatory.

How will the Court rule? That is a tricky thing to predict.

Perhaps because the Obamacare issue has been so sharply divided along party lines, the first guess is that it will be a split 5-4 decision. If this is the outcome, the constitutionality of Obamacare will presumably hinge upon whether or not Justice Kennedy accepts the federalist argument that the individual mandate is unconstitutional.

A notably silent voice during the Obamacare hearings was Justice Clarence Thomas, who has reportedly refrained from questioning during oral arguments for six years because it is a process he simply doesn’t like - and because he has already made up his mind by the time the advocates arrive at Court. Predicting the vote of Justice Thomas - known as the Court’s most conservative justice - isn’t too hard.

In the Rehnquist Court’s 2005 6-3 decision in Gonzales v. Raich, Justice Thomas dissented (happening to dissent even from Justice Scalia). In his dissent he lamented “the steady drift away from the text of the Commerce Clause,” and argued that “Congress may regulate interstate commerce - not things that affect it, even when summed together, unless truly ‘necessary and proper’ to regulating interstate commerce.”

In order to get the majority needed to strike down the individual mandate, it could be that the conservative justices would convince a moderate or liberal justice to at least affirm the 11th Circuit Court of Appeals’ decision, which separates the individual mandate from the rest of the bill. If the majority deems Obamacare unconstitutional, Justice Kagan, the Obama administration’s former Solicitor General who has showed no signs of recusing herself, will very likely be a dissenter.

But the ruling does not end with a vote. Through their written opinions, each justice provides his or her rationale behind their vote. Not all of them vote the same way for the same constitutional reasons (their opinions can also concur in part and dissent in part). The majority opinion, concurring opinions, dissent, and concurring dissents are the documents through which legal precedent is preserved for generations to come.

Meanwhile, according to an ABC News/Washington Post poll, 67% of Americans want the Supreme Court to rule Obamacare unconstitutional - or at least strike down the individual mandate.

After President Franklin D. Roosevelt’s New Deal, a mindset of government entitlement became ingrained in some parts of America culture. Federal government overreach has ballooned far beyond anything that people could imagine in the days of original American federalism. But even the most welfare-state aspects of United States policy implemented in the past (i.e. Social Security, Medicare, Medicaid) were passed in Congress by greater margins (and bipartisan ones at that) than the PPACA.

There appears to be something in a vast fraction of American consciousness that still draws the line against the federal government mandating the purchase of health insurance. The job of the Supreme Court will be to decide where the Constitution draws the line.


Amanda Read is an unconventional scholar, a Southerner without an accent, a Christian who hasn’t been a churchgoer in 17 years and a college student who lives with eight younger siblings. A writer and artist, she blogs at and is the author of the historical drama screenplay The Crusading Chemist. Amanda is majoring in history and minoring in political science at Troy University.

Keep up with her on Facebook at and Twitter:

This article is the copyrighted property of the writer and Communities @ Written permission must be obtained before reprint in online or print media. REPRINTING TWTC CONTENT WITHOUT PERMISSION AND/OR PAYMENT IS THEFT AND PUNISHABLE BY LAW.

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Amanda Read

Amanda Read is a columnist for the Communities at The Washington Times. Trained as a historian, skilled as a writer, and aspiring to be a filmmaker, Amanda investigates the ideas behind contemporary culture and politics. A professional writer and researcher, she is also a Christian homeschool graduate, unconventional college graduate, military daughter, and eldest of the nine Read children at Fair Hills Farm. Find more of her work at

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