John Marshall to John Roberts: “WTF?”

After yesterday’s argument, it seems the individual mandate has little chance of surviving the machinations of the radically conservative Roberts Court. The question now is just how radical is the Roberts Court? Is it a modern day Lochner court? Two questions to be argued today pose the question in the most important and stark terms: Will the radical Roberts Court strike down the Medicaid expansion provided for in ACA on specious “federalism” grounds? Will the radical Roberts Court strike down the entire ACA?

The pernicious consequences of such action, not only in terms of the policies of health care reform but to our entire Constitutional system of government, could not be graver. The radical Roberts Court appears to be proposing a return to a pre-1937 governmental structure. It is an appalling and amazing development.

The Roberts Court is indeed The Most Dangerous Branch.

Here are the legal issues presented today:

(1) Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress’s spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply? (Normally I would note that this is a ridiculously argumentative  presentation of the question. But I bet the Roberts Court sees itas afairpresentation)

(2) Congress effected a sweeping and comprehensive restructuring of the Nation’s health-insurance markets in the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 109 (2010) (collectively, the “ACA” or “Act”). But the Eleventh Circuit and the Sixth Circuit now have issued directly conflicting final judgments about the facial constitutionality of the ACA’s mandate that virtually every individual American must obtain health insurance. 26 U.S.C. § 5000A. Moreover, despite the fact that the mandate is a “requirement” that Congress itself deemed “essential” to the Act’s new insurance regulations, 42 U.S.C. § 18091(a)(2)(I), the Eleventh Circuit held that the mandate is severable from the remainder of the Act. (I have chosen the challenger question presented because I think it more fairly reflects the question to the radical Roberts Court.)

The question presented is whether the ACA must be invalidated in its entirety because it is non-severable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution.

Soak in just how radical these questions are. It seems unimaginable that in the year 2012 such questions could be considered to be serious. Now consider the concession already provided on the severability question by the Obama Administration. In its brief on severability (PDF), the Obama Administration states:

In the event , however, that the Court does have occasion to address severability [... the Obama Administration says the parties do not have standing to seek the the striing down of the entire ACA) the place of the minimum coverage provision in the larger statutory context would again be relevant . In particular, without miminimum coverage provision [the mandate], , the guaranteed-issue [the ban on preexisting conditions restrictions] and community rating provisions would drive up costs and reduce coverage, the opposite of Congress’s goals. They are therefore inseverable from the minim coverage provision and must be invalidated.if the Court finds it unconstitutional

No ban of denial of coverage for preexisting provisions, no community rating, no medical expense ratios. And that is the Obama Administration’s position!! But other than that, how are you liking this ACA play?

But hey, we can still have the expansion of Medicaid and subsidies to purchase private insurance right? Not so fast, my friend. Even though NO court has even considered ruling the Medicaid expansion unconstitutional, this radical Roberts Court has swooped in to bring the issue front and center.

On the flip, I will consider the legal arguments involved, but at this point, I am convinced that the law has absolutely nothing to do with what this radical Roberts Court will do. Judicial activism is a polite description of what is going on here. The impolitic description is a radical conservative coup d’etat.

(Continued on the other side)  

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