Obamacare is likely facing its last stop before heading to the Supreme Court next year. On Wednesday, the 11th Circuit U.S. Court of Appeals in Atlanta heard oral arguments in the biggest Obamacare case in the country.
This is the Obama administration’s appeal in Florida v. U.S. Department of Health and Human Services. It’s the case in which Obama suffered his most embarrassing defeat at the district-court level when Judge Rodger Vinson struck down not only the linchpin of Obamacare — its individual mandate — but the entire 2,700-page law with it.
There are several major Obamacare cases across the country, but Florida v. HHS is the biggest. It involves 26 states — represented by President George W. Bush’s Solicitor General Paul Clement, and the National Federation of Independent Business and a couple of uninsured individuals — represented by Supreme Court lawyers Michael Carvin and Gregory Katsas.
Arguing the president’s case is his top Supreme Court lawyer, Acting Solicitor General Neal Katyal.
There are two main issues in the appeal. The first is the requirement that almost all Americans must buy and maintain health insurance in 2014 — the “individual mandate” — is challenged in this case as it is in almost all the Obamacare lawsuits nationwide.
This mandate is an unprecedented claim of unlimited federal power. If government can command you to buy insurance, it can command you to do anything. Instead, the Constitution creates a
government of enumerated powers, under which every federal action must be authorized by one or more provisions of the Constitution.
Knowing this, the administration argues the individual mandate is authorized by Congress’ power to regulate interstate commerce. If you disagree, they say it’s authorized as a tax. If you don’t buy that either, then they say it’s authorized by the Necessary and Proper Clause.
But all these arguments are wrong. The Commerce Clause regulates economic activity. It’s never been asserted to regulate inactivity, or coerce someone into commercial activity.
The second issue is that Obamacare massively expands Medicaid, which is a federal program run by the states that’s also partially funded by the states. This expansion is an unconstitutional coercion of the states, going beyond the Constitution’s Spending Clause in violation of the 10th Amendment.
Cash-strapped states will have to foot a full 10 percent of this expansion, an expansion that will cost $434 billion over just 10 years. This goes beyond attaching reasonable conditions on government funding, because the states could go bankrupt if they withdrew from Medicaid.
But the brass ring in this litigation is “severability.” Normally, courts only strike down the unconstitutional provisions in a law. But there are rare exceptions where a provision is so central to the statute that it cannot function as Congress intended without it.
The administration admits the individual mandate is the linchpin to Obamacare. The Medicaid expansion is likewise essential. So Obamacare’s next step likely will be in the Supreme Court before the election.
Examiner legal contributor Ken Klukowski is a senior fellow with the Family Research Council.