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Lawyers, courts see weaknesses in defense of Obama’s healthcare law
The Hill ^ | 1/05/11 | Sam Baker

Posted on 01/05/2012 9:21:55 PM PST by Libloather

Lawyers, courts see weaknesses in defense of Obama’s healthcare law
By Sam Baker - 01/05/12 12:59 PM ET

The Obama administration is headed into a Supreme Court case over healthcare reform without a clear answer to significant questions about Congress’s power.

The Justice Department will file its first brief on the merits of the case Friday — the beginning of a long process that will almost surely culminate in a ruling this summer. The first briefs will focus on the core question of whether it is constitutional to make almost every American buy health insurance.

The Obama administration has a winning record on that point in federal appeals courts. But even in the cases it has won, the administration has failed to answer a key question: If Congress has the power to enforce the insurance mandate, where does that power stop?

It’s known in legal jargon as a “limiting principle.” When courts evaluate a new application of Congress’s constitutional authority, they have historically wanted to see clear limits to those powers.

“The DOJ has to do a better job of answering, ‘What goes beyond your theory of federal power?' " said Ilya Shapiro, a legal scholar at the libertarian Cato Institute who opposes the insurance mandate. “They’ve been asked this in every court and they’ve never satisfied the court, even in the cases they’ve won.”

The 11th Circuit Court of Appeals — the specific case now before the Supreme Court — struck down the insurance mandate partially on the grounds that upholding it would open the door to a flood of regulation.

“Ultimately, the government’s struggle to articulate … limiting principles only reiterates the conclusion we reach today: There are none,” the court said in its ruling.

The mandate is, in a literal sense, unprecedented: Congress has never before required citizens to buy something from a private company solely on the basis of being citizens. The question is whether Congress is exerting a new power not authorized by the Constitution, or using its authority under the Commerce Clause in a new way, consistent with Supreme Court precedent.

Several lower courts have said the mandate falls within the bounds of the Commerce Clause, but even they have been wary about the Justice Department’s inability to clearly define a limit on Congress’s power.

The U.S. Circuit Court for the District of Columbia, which upheld the mandate, said it was “troubling, but not fatal” that the Justice Department had not identified a limit to Congress’s power.

“We acknowledge some discomfort with the government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce,” the court’s opinion said.

Tim Jost, a Washington and Lee University law professor who supports the healthcare law and the mandate, also said the lack of a clear limiting principle is the government’s biggest weakness heading into the Supreme Court.

The problem is “not insurmountable,” Jost said, but gained new importance when a lower-court judge asked whether Congress could also make citizens buy broccoli, since a healthier population would do more to cut health costs than universal insurance coverage.

In lower courts, the Justice Department has worked around the issue of a limiting principle by arguing that healthcare is a unique market. Because hospitals are legally required to treat people who can’t pay, the system is inevitably stuck with unpaid bills. Those costs are then passed on to insured people and the government.

A decision upholding the insurance mandate wouldn’t open the door to other mandates because no other products involve the same kind of cost-shifting, the Justice Department says. The D.C. Circuit court accepted that rationale, but the 11th Circuit said the logic would simply put the courts in charge of determining whether future mandates are close enough to the insurance requirement.

Shapiro said the position is a policy argument, not a legal one.

“Everything is unique in some way,” he said. “A rutabaga is not a car.”


TOPICS: Crime/Corruption; Extended News; Government; News/Current Events
KEYWORDS: commiecare; healthcare; lawyers; obamacare
...whether it is constitutional to make almost every American buy health insurance.

Almost - because the rookie Hussein and Congress are exempt from their own law.

1 posted on 01/05/2012 9:22:00 PM PST by Libloather
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To: Libloather

“Almost - because the rookie Hussein and Congress are exempt from their own law.”

The Obama administration is headed into a Supreme Court case over healthcare reform without a clear answer to significant questions about Congress’s power.

Like, making recess appointments when they aren’t in recess?


2 posted on 01/05/2012 9:30:47 PM PST by jessduntno
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To: Libloather; neverdem; narses; MHGinTN; SmithL; SunkenCiv

Biggest weakness is that - IF! (big “if” there) - Rowe v Wade were correct Constitutionally in finding a “right to (medical) privacy” in the Constitution, then Obamacare pushes the government right back into the middle of EVERY medical and financial decision that a doctor and patient make in EVERY instance of medical care.


3 posted on 01/05/2012 9:33:55 PM PST by Robert A. Cook, PE (I can only donate monthly, but socialists' ABBCNNBCBS continue to lie every day!)
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To: Libloather

If you are “buying” healthcare with Government money, you will have to play by the Government’s rules. Thus, they could pass a law mandating that people buy broccoli and whatever other foods as are officially deemed to promote good health. And yes, comrade, your urine will be randomly screened for broccoli metabolites, and if you are low you will be deemed counterrevolutionary and will be “reeducated” in Utah. In other words:

END OBAMACARE NOW!!!


4 posted on 01/05/2012 9:40:10 PM PST by Frank_2001
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To: Libloather
So is this just the first step in many that will give the govm’t the ability to tell the citizenry what they have to buy where they have to live and then eventually tell them what vocation they must fulfill just like Mao’s China?

It is looking more and more like 1984.

5 posted on 01/05/2012 9:44:12 PM PST by guitarplayer1953 (Grammar & spelling maybe wrong, get over it, the world will not come to an end!)
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To: Robert A. Cook, PE

That’s the real rub with liberalism- there is no value-based platform from which to build meaningful doctrine. If your private right to abortion is so sacrosanct, how can the government force you to accept pre-natal health care?

If life does not begin at conception, what is the vehicle by which one has to submit to entering government interest?

Pick the stick with which you want to beat us, Caesar.


6 posted on 01/05/2012 10:42:11 PM PST by One Name
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To: Libloather

The court needs to also grill them as to why congress and presidents are exempt from the law.

If the commerce clause is the source of the power to do.all this, why didn’t the founders use it that way, or any other Congress and presidents?

This is Roe v Wade logic all over again. The power does not exist to do this in the constitution, that’s a fact.


7 posted on 01/05/2012 11:28:42 PM PST by Secret Agent Man (I'd like to tell you, but then I'd have to kill you.)
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To: jessduntno
Obama might suffer from The Law of Unintended Circumstances after his power grab. The SCOTUS might take a tougher look at Obamacre after his clearly lawful actions over the appointments.
8 posted on 01/06/2012 1:59:09 AM PST by MCF
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To: Libloather

“Because hospitals are legally required to treat people who can’t pay,...”

Here the first problem. Privet hospitals are forced to give away goods and services (which I believe) is be on the scope of the Commerce clause. It would be a different story for a government owned hospital.


9 posted on 01/06/2012 2:37:37 AM PST by steveab (When was the last time someone tried to sell you a CO2 induced climate control system for your home?)
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To: Libloather

Well His Majesty Obama Has Declared,”I will Not Take No for an Answer”,so that takes care of that


10 posted on 01/06/2012 3:30:12 AM PST by ballplayer
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To: ballplayer

When ever anything goes to the Supreme Court system that is agains’t Obama, you can pretty much say it’s a lost cause. The “court” won’t rule against him, he appointed them. Going against “dear ruler” might be reason for said dear ruler to do away with the court all together. You think for one second he wouldn’t try that when he has gone against the constitution sooooooooo many times before? He is now the “king”, just ask him. He can/will do what HE wants, not what the laws say.


11 posted on 01/06/2012 4:42:06 AM PST by DaveA37
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