Can Obamacare be defeated?

| March 26 2012
Christopher Cook

There are three ways that Americans could be rid of Obamacare.

1. The Supreme Court strikes it down, in whole or in part, when it issues its ruling this summer.

2. A newly elected congress and president work together for its repeal.

3. It is enacted but subsequently (eventually) falls apart due to is unsustainable nature.

 

There’s no doubt that Americans WANT it defeated, as nearly every poll has shown, including two new ones:

Reason-Rupe:

54 percent of Americans think the health care law will result in the rationing of health care services. Half of Americans have an unfavorable view of the health care law, while 32 percent have a favorable view of it. Similarly, 49 percent say the law should be repealed and 36 percent would let it stand.

The Hill:

Just 42 percent said the court should uphold the law, with 50 percent saying it should be struck down.

A majority of both men and women want the law voided. By a 52-percent-to-39-percent margin women are more opposed to it than men, who oppose it 48 percent to 45 percent, a difference that matches the poll’s 3-point margin of error.

Only blacks (74 percent), Democrats (71 percent) and liberals (75 percent) want the law upheld. While even the youngest voters oppose the law (47 percent to 42 percent among those aged 18-39), opposition grows to 53 percent among voters aged 65 and older.

The first opportunity is here, as the Supreme Court is hearing the case this week. In Obamacare Comes before the Supreme Court, Heritage gives an overview of this monumental case. The possibilities range from refusing to deal with the mandate or the rest of the case because of the Anti-Injunction Act all the way to making decisions that, one way or the other, will impact American jurisprudence as much as any decision has. Read the summary for a quick overview of those issues, and more.

So much is riding on this case. Assuming the Court doesn’t simply use the Anti-Injunction Act to kick the can down the road, their decisions will be monumental. If they rule the wrong way, Congress will be able to . . .

  • force you to do whatever it wants.
  • write laws that give rule-making authority to unelected bureaucrats.
  • write sloppy laws it doesn’t even read, laws with no severability clauses, and get away with it
  • force mandates on states that they cannot afford, yet rob them of sovereignty and control.
Heritage also provides a more detailed look at possible outcomes in Obamacare in the Supreme Court 101: Deliberations, Rulings and Impacts. The foregoing is a summary excerpt of the information therein, serving as a flowchart of issues and possible outcomes:

Issues the Court Will Decide:

  1. The justices will decide if the Anti-Injunction Act will prohibit states and other parties from challenging the individual mandate.
  2. The Court will determine if the individual mandate that requires all Americans to buy health insurance is unconstitutional.
  3. The Court will decide if the mandate, if ruled unconstitutional, can be severed from the Affordable Care Act.
  4. The Court will rule if Congress exceeded its enumerated powers under the Spending Clause and violated basic federalism principles by placing heavy regulations on states that receive Medicaid funding.

First Issue: Anti-Injunction Act (AIA)

Option 1: The Court finds that the Anti-Injunction Act precludes it from going to the question of the constitutionality of the individual mandate.

Option 2: The Court decides the Anti-Injunction Act doesn’t apply.

Second Issue: Individual Mandate

Option 1: The Court upholds the individual mandate.

Option 2: The Supreme Court strikes down the mandate because it is unconstitutional.  The Court will then need to consider if the mandate can be extracted or severed from the health law.

Third Issue: Severability from the Individual Mandate

Option 1: The Court decides to strike only the mandate from the law.

Option 2: The Supreme Court strikes the mandate and other “related” provisions in Obamacare.

Option 3: The Court finds the mandate unconstitutional and that it is not severable from the law, so all of Obamacare is struck down.

Issue 4: Medicaid’s Coercive Impact on States

Option 1: The Court rules that Congress can force states to comply with the onerous requirements of Obamacare or lose all Medicaid funding.

Option 2: The Court strikes down Medicaid-related requirements.

 

 

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