Will Obamacare soon be repealed?

It appears that Obamacare will be declared unconstitutional by the Supreme Court by June of 2012. This past week, the Supreme Court of the United States decided to hear the case against Obamacare, officially known as the Patient Protection and Affordable Care Act.

The legal issue is the individual mandate clause of the law. This mandate requires that everyone purchase health insurance by 2014 or face a fine of $695 for individuals and $2,085 for families. The theory behind this is that insurance companies need a larger base of healthy customers to offset the costs of covering those with preexisting conditions. The Florida State Attorney General and twenty-five other state attorney generals are suing on the premise that the individual mandate is unconstitutional because the government cannot force consumers to buy a product.

The Obama Administration argues that the individual mandate is constitutional because it falls under the Unite States Constitution’s commerce clause. When an uninsured person is sick and goes to the emergency room, taxpayer dollars are used to help cover the costs. Therefore, because some of this money comes from the federal government, the uninsured person’s decision not to buy insurance falls under the commerce clause. Another argument for the constitutionality of the individual mandate is that if the federal government can require drivers to purchase car insurance, they can also require individuals to purchase health insurance.

There are several flaws with these arguments. First, the car insurance argument is invalid because people still have a choice in that situation. If they do not want to pay for car insurance, they do not have to drive. The health insurance mandate, on the other hand, allows only a select few, including those covered by Medicaid and those with religious objections, to avoid purchasing health insurance.

Second, the commerce clause argument is invalid because the commerce clause does not allow the government to regulate inaction. If the government wants the ability to regulate inaction, it needs to pass a constitutional amendment. This course of action actually has precedent. Before the 16th Amendment, the United States Supreme Court ruled in Pollock v. Farmer’s Loan and Trust that certain taxes on incomes were unconstitutional because they were not apportioned direct taxes. When these income taxes were declared unconstitutional, Congress passed the 16th Amendment, “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

Unlike taxes, the purchase of health insurance is not addressed specifically in the Constitution. Therefore it would fall under the 10th Amendment, “The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively or to the people.” Thus, without an amendment, the individual mandate is unconstitutional because the federal government is usurping the state’s power. On these grounds, it appears, that the states’ lawsuit will be ruled to be valid, and the mandate will be ruled unconstitutional on a 5-4 vote, most likely with Justice Kennedy being the deciding factor.

In the end the Justices will decide whether the bill can stand without the individual mandate. If they decide it can, then the health care law will most likely remain mostly unchanged. If they strike down the entire law, the debate over health care will go back to square one, and maybe politicians will be able to craft a truly helpful bill.

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