Hearing audio clips from the case before the Supreme Court arguments on Obamacare has been encouraging. Justices Roberts, Scalia, and Kennedy have asked key questions of Solicitor General Donald Verilli, who has had an extremely tough time making valid arguments. Part of the confusion arises because of the Obama administration’s argument that the power to enforce the individual mandate is rooted in Congress’ taxing power — but that the mechanism itself is designed to be a penalty, not a revenue-generating policy.
Even U.S. Solicitor General Donald Verrilli, seemed confused; using the phrase “tax penalty” multiple times to describe the individual mandate’s backstop. He portrayed the fee as a penalty by design, but one that functions as a tax because it’s collected through the tax code. This prompted Justice Samuel Alito to comment, “General Verrilli, 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,” causing a few moments of laughter during the 90 minutes of argument Monday.
The comment by Justice Scalia underlines the song and dance routine that the Obama White House is playing in its argument; and just how badly written the Obamacare legislation actually is. On one hand, Obama’s administrations claims the backstop is not a tax, because that could subject it to the Anti-Injunction Act; while on the other, they claim that the power to impose a penalty derives from Congress’ broad taxing power. That’s in part because calling it a tax makes defending the individual mandate a bit easier because Congress’ power to levy taxes is less in question than its power to force people to do things.
Even Obama appointed Justice Elena Kagan (who should have recused herself due to her advisory role to the Obama administration in formulating the Obamacare legislation) asked whether refusing to buy insurance would constitute breaking the law. Verrilli responded by saying he would argue that if people “pay the tax, then they are in compliance with the law.” This comment caught the attention of Justice Stephen Breyer.
“Why do you keep saying tax?” Breyer asked, causing a few more laughs.
The justices, particularly the four Democratic-appointees, and Justice Antonin Scalia, appear very skeptical that this “fine” constitutes a “tax,” which would then make it a penalty imposed for not complying with the law. This would make the Individual Mandate an unconsitutional abuse of congressional power. By forcing individuals into financial contracts for services they do not want to purchase or face a government imposed penalty, the Obama administration is violating several Constitutional rights. You would think liberals, ever so willing and ready to defend a woman’s right to choose … would also be lined up to defend a citizen’s right to choose and working to defeat Obamacare. Ah well … just more of that selective “moral outrage!”
Anyway, it is too early to say, but this does not bode well for Obamacare.
D.C. Gilbert 
I believe the situation a little more complicated than it is presented by the media. As an example, I have a friend that, ironically, dropped his health insurance because he developed a heart condition and has diabetes. His rate was $2600.00/month. At his income, it was either drop insurance or stop eating. When his somewhat inevitable crisis occurs, the hospital emergency room must treat him by law and you and I will pay the bill by way of exhorbitant charges by the hospital on our bills. So lemme see here, it’s unconstitutional to force him to buy insurance, but it is constitutional to force us to pay his healthcare costs when this nonpayer has his crisis.
Seems to me that if someone can’t pay their bill, the hospital shouldn’t have to treat him. What do you think?
I think access to affordable healthcare is important to all Americans. I think there are way to effectively bring health cost down that have been discussed but never tried such as:
1. Opening up the health insurance market like the auto insurance is. Current federal health insurance regulations make little monopolies of each state when it comes to health insurance and thus there is no free-market-based price control due to competition for your business.
2. Tort Reform: Frivilous lawsuits cause malpractice insurance premiums to skyrocket causing doctors to raise rates to cover skyrocketing malpractice insurance premiums. Can you say “duh?”
3. Private sector insurance cooperatives: I use an insurance cooperative for my homeowners and auto insurance lowering my premiums about 66% for homeowners and 30% for auto.
4. Decreased federal regulations, etc. Doctors are not IT professionals, lawyers, or business managers. I want a cardiologist who knows hearts inside and out … and I do not really care if he or she is an expert on complying with federal regulations on securing electronic medical records using the NIST risk assessment model described in the 400 pages of NIST Special Publication 800-53A. Medical practices now have to hire teams of IT consultants, lawyers, and busines managers to try and sift through, and comply with, new regulations ad nauseum coming down the pike (many due to Obamacare). Guess what … that makes costs go up! I have some knowledge in this area and some of these new regulations are so poorly thought out and so poorly written, that to be in compliance with this regulation … you are forced to be out of compliance with that regulation.
The fact is that Obamacare is a poorly written, poorly thought-out travesty of a bill that shows just how in-over-their-heads the Obama administration actually is. It is, at its core, a big govenment power-grab disguised as a healthcare bill. It was essentially written by ACORN and this administration (by its own admission) had no idea what was in it before they passed it. It is already leading to higher healthcare costs and higher taxes. Rationed care due to prohibitive costs is just around the corner. And, it gives the federal government more control of our lives. If Obama can tell us what health insurance we have to buy and fine us if we don’t; how long will it be before he can tell us what car to buy, what soda pop to drink, what radio station to listen to, what church we can’t go to, or what bubble gum our kids can chew?
A heart condition and/or diabetes are real concerns … free condoms and “morning after” pills for all are not. He is just pandering to left-wing activists with that one … buying the votes of irresponisble voters. The government has no business forcing citizens to buy anything, much less fine them if they do not.
When I got out of the Army, in the early 80s, I could buy an individual Prudential health insurance policy that covered what I needed for about $165 / 6 months. That was affordable. Then the government got involved and screwed it up. Now I have a choice of CIGNA or Blue Cross, and because they have a monopoly … they can charge whatever they want. Free-market capitalism did not do that ….