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Monday, November 14, 2011

Supreme Court Grants Hearings On Constitutionality Of Obamacare: Lose/Lose For Obama In 2012

By Susan Duclos

The Supreme Court has issued an order on Monday to hear constitutionality challenges against Obama and Democrats' Affordable Care Act aka Obamacare. The oral arguments will be heard in March and the Supreme Court has allotted 5 1/2 hours of time to those arguments.

Via Scotusblog:

Here, in summary, is what the Court’s orders on Monday did:

* Granted, the issue of “severability” of the insurance mandate from the other provisions of the law, if the mandate is nullified (the only question in National Federation of Independent Business v. Sebelius [docket 11-393] and question 3 in Florida, et al., v. Department of Health & Human Services [11-400]), cases consolidated for 90 minutes of oral argument.

* Granted, the constitutionality of the insurance mandate (question 1 in the government case, Department of Health & Human Services v. Florida, et al.), two hours of oral argument.

* Parties directed to brief and argue whether the lawsuit brought by the states challenging the insurance mandate is barred by the Anti-Injunction Act (an added question in the government case, 11-398), one hour of oral argument. (That order appeared to be limited to reviewing whether that Act only bars states from challenging the mandate; the question of whether that Act bars private entities from challenging the mandate was raised in the Liberty University case, and the Court did not grant that petition.)

* Granted, the constitutionality of the Medicaid expansion (question 1 in the Florida, et al., v. Department of Health and Human Services case, 11-400); one hour of oral argument.

It is noteworthy that the Senate version of Obamacare that was passed into law did not include a severability clause but the the version passed by the Democratically controlled House of Representatives on November 7, 2009 did have a severability clause.

Severability is listed in Section 255 within H.R 3962 (2016 page PDF of House version before being sent to the Senate).

The reason this is noteworthy is because in the State of Florida's petition against the Obama administration's Department of Health and Human Services, they argued that it was a conscious choice on the part of the Senate to remove the severability clause.

Page 13 from the 17 page PDF of petition states:

Two factors demonstrate that Congress did not intend the individual mandate to be severable. First, the Affordable Health Care for America Act (H.R. 3962), which the House approved on November 7, 2009, contained an individual mandate section as well as a severability provision.4 H.R. 3962’s severability provision, however, was not included in the final version of the ACA. Congress’s conscious rejection of a severability clause in the ACA is strong evidence that Congress did not intend for the statute’s individual provisions to be severable.

Federal Judge Roger Vinson ruled that the entire Obamacare be void because of the lack of severability and it set up one the main issues the Supreme Court has just granted a hearing on.

Vinson's 78 page judgment can be found here.

The issue granted from National Federation of Independent Business v. Sebelius [docket 11-393] is:

Whether the Affordable Care Act must be invalidated in its entirety because it is nonseverable from the individual mandate that exceeds Congress’s limited and enumerated powers under the Constitution. (Source)

The Obama administration took a large gamble in arguing that the individual mandate not be severable which could encourage the Supreme Court, if they rule the individual mandate as unconstitutional, to follow Vinson's ruling and declare the whole Obamacare law as void.

Liberal Ezra Klein hits the possible outcomes:

• The Court could rule that the health reform law is constitutional and allow it to move forward

• It could also rule, as the 11th Circuit did, that the individual mandate falls while the rest of the law stands.

• The Court could decide that the individual mandate is so key to health reform law that, if it falls, the whole law comes down with it.

With the majority of the American public, on average, (50.6%) still being opposed to Obamacare in it's entirety and only 38.6% in favor of the law, this Supreme Court action and potential June ruling could possibly be a lose/lose situation for Barack Obama's reelection chances.

A plurality of voters, again, on average according to RCP averaging multiple polls from a variety of organizations, want Obamacare repealed.

49.8% favor repeal of Obamacare with 40.3 percent, on average, opposed to repeal.

Obamacare as an issue in 2012

Whoever is chosen as the Republican nominee to run against Obama in the 2012 presidential election will be able to use Obamacare against Obama and Democrats no matter what the Supreme Court rules.


If the Supreme Court rules in favor of the Obama administration there is still a majority opposed to the healthcare law Obama and Democrats passed into law against the opposition of that same majority at the time of passage. The Republican nominee will be able to tap into the resentment and anger of that majority against Obama because the potential final ruling will be so close to the November 2012 presidential election. The Republican nominee will also be able to better highlight the need for repealing Obamacare which has the support of the plurality of Americans as seen above.

If the Supreme Court strikes down the individual mandate as unconstitutional, the Republican nominee will again be able to tap into the public's opposition by reminding them how the Obama administration with the backing of the Democratically controlled Senate at the time, without Republican support, pushed through an unconstitutional law.

If the Supreme Court strikes down the individual mandate and rules the whole law void because of the lack of severability clause, the same argument applies. The Republican nominee will use the passage of an unconstitutional law in his/her campaign against Obama in 2012.

Lose/Lose situation for Obama in 2012.