March Holds More Excitement Than Just Calving Time in 2012

The U.S. Supreme Court has published its schedule for hearing cases in the next term.  As you may be aware, rather than the customary one-hour allowed for plaintiff and defense to present oral arguments before the Court, the cases regarding Obamacare have been allocated five-and-a-half hours of oral arguments.

 The most interesting and disturbing part of the arrangement is that the first day of argument – for one hour on March 26, 2012 — will be allocated to the question as to whether or not the Court can really examine this law.  There is an old 19th century law that forbids the Court from striking down a tax law before the taxpayer has paid the tax and then demanded a refund (“Supreme Court to hear arguments in March on healthcare law,” Los Angeles Times, 12/20/2011).  However, its applicability would be contingent on whether the penalty a taxpayer without approved health insurance would be assessed in 2014 is a tax or not.  Appellate courts have held various opinions.

It has to be somewhat encouraging the Court agreed to hear the case, as it would have been much easier for them to reject hearing the case at all if they truly believed they had no authority to act until the law went into effect.  We’re guessing they are more interested in laying groundwork for establishing that they do have the authority to hear the case.  We are not lawyers but we’ve got to think the Justices can find in the law somewhere an excuse to consider a law the implementation of which would require billions of dollars, has already caused major upheavals in the health care industry, has huge budget implications for all states and goes to the core of individual’s rights and responsibilities in our society.

 Certainly a potent case can be made that the good of the country – both with respect to proper spending of public funds and to the basic rights of citizens to be free from government compulsion – can be made by a Court that in recent decades has sanctioned judicial involvement in nearly every aspect of an individual American’s life.  The fiscal implications alone have seldom been more monumental outside of time of world war.

 The second day of arguments would devote two hours to the mandate portion of the bill.  The third day would consider both what affect the striking of the mandate would have on the rest of the law and whether the federal government violated states rights in expanding Medicaid and require states to increase funding.

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Published in: on December 20, 2011 at 4:46 pm  Leave a Comment  

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