Skip to comments.New look at health care? [Supreme Court re-review of Obamacare?]
Posted on 10/01/2012 9:53:46 AM PDT by Hunton Peck
The Supreme Court opened its new Term on Monday by asking the federal government to offer its views on whether the way should be cleared for new constitutional challenges to the federal health care law including a new protest against the individual mandate that the Court had upheld last June. The request for the governments views came in response to a rehearing request by a religious-oriented institution, Liberty University in Lynchburg, Va. The universitys earlier petition was simply denied in June, so it asked the Court to reconsider and wipe out a lower court ruling in order to revive the universitys religious challenges to both the individual mandate and the separate insurance coverage mandate for employers. There is also another challenge to the employer mandate, which did not figure in the Courts decision last Term.
The order came amid a long list of orders on cases that arrived at the Court over the summer. There were no new grants. Among other actions, the Court invited the government to offer its reaction to several new cases.
The U.S. Solicitor General was invited to advise the Court on whether it should hear Arzoumanian, et al., v. Munchener (docket 12-9) on the insurance claims of victims of the Armenian genocide; three related cases on class-action lawsuits involving securities fraud (dockets 12-79, 12-86 and 12-88), and on Young v. Fitzpatrick (docket 11-1485), a case testing legal immunity for police officers working for an Indian tribe.
The Court summarily affirmed lower court rulings rejecting claims of packing of minority voters into new districts to diminish their political strength a question of racial gerrymandering (Backus v. South Carolina, 11-1404) as well as claims of partisan gerrymandering in redistricting (Radogno v. Illinois Board of Elections, 11-1127). The Court provided no explanation for its action.
(NOTE TO READERS: This post will be updated and expanded following this mornings oral arguments. Posts also will appear later today on those arguments.)
This bill DID start in the house. The Senate stripped it, renamed it and stuck in Zerocare..
However, the court has never ruled on that practice so that angle can be worked.
Since when does the Supreme Court ask the federal Government what to do?
Aren’t they a separate entity?
At least they should be.
If they ask the Obama Government what they should do they already know the answer, Obama will tell the to do nothing.
WTF is wrong with our Supreme Court? Have they all been sheared of their balls by the 2 Dykes and one liberal old woman on the court?
And that argument has yet to be decided by the USSC.
The founding fathers would have been shooting by now (civil war 2)
The problem is that the conservatives on the court called it a penalty. Penalties do not have to originate in the House, only taxes.
In order for Obamacare to die as a tax, the conservatives would have to do a complete 180, agree with Roberts that it is a tax, and then strike the whole thing down. That does not seem likely.
“Because he was the deciding vote.”
No, he wasn’t. There were other votes that could also have been called “deciding” votes, but that’s a nitpick. He had no interest in just killing it as a distortion of the commerce clause and nothing else. That would have been a checker players move. He effectively killed the commerce clause action and opened it to assault on MANY levels; it could not be used in a tax exempt environment (Catholic Hospitals, for instance) or could not be activated as a tax in its’s current form. And he knew that it would take another session and approvals and reconciliation to pass. And that ain’t gonna happen. Checkmate.
Amen,We were betrayed.
Amen Rose... he is truly a pos progressive.
One party (Liberty U.) petitioned for a rehearing. At that point, the SC had two options: they could deny the petition, or give the opposing party (the feds) an opportunity to respond before ruling. They did the latter. That’s a good thing (though it remains uncertain whether it will amount to anything much).
I agree.. those that thing Roberts was brilliant for setting up the argument as he did are nuts.
Roberts could have killed zero care dead with a vote the other way.
now we have to go out in to uncharted waters and HOPE 5 judges agree with our new argument.
I think they are not allowed to ‘ammend’ anything to be ADDING a new tax- that would violate the ‘origination’ clause, wouldnt it?
“now we have to go out in to uncharted waters and HOPE 5 judges agree with our new argument.”
Anyone who thinks these are unchartered waters are, to use your phrase, “nuts.”
The law is clear. The tax was imposed illegally. The commerce clause has been restrained. It’s all good. Had he voted the other way, it would have done nothing like this...we can now set precedent for both areas of abuse of our state’s rights. Unless you don’t think that is important. Uncharted waters. Nuts.
As you asked..here it is...
Although the Courts order dealing with unsettled issues over the constitutionality of the new health care law was significant, because the Court could easily have bypassed the Liberty University plea and usually does just that, and yet it did not, its significance also could be exaggerated. The request for the governments views is not a guarantee that the Court will say anything really new about the Affordable Care Act, that it would even hint at how the case should come out if returned to a lower court, or that it would issue any order that permits the University to make the challenges that were not ruled upon by the Justices, or even by the lower federal court that heard Libertys case the Fourth Circuit Court in Richmond, Va.
When Libertys case was before the Fourth Circuit, that Court ruled that it had no jurisdiction to hear the Universitys constitutional objections to the ACAs mandate that individuals must obtain health insurance by 2014, or pay a penalty. That blunted the Universitys claims that the individual mandate is unconstitutional on a variety of grounds: that it was beyond Congresss power under the Commerce Clause and the Necessary and Proper Clause, and that it violated the rights of the University and its employees to religious freedom and to legal equality. The University also had no chance to make its case against the similar mandate, that larger employers must provide a minimum level of health insurance coverage for their employees, or be penalized.
When the Supreme Court upheld the individual mandate at the end of last Term, it did so under Congresss power to use a penalty in the form of a tax to enforce an economic choice that Congress had mandated. The Justices split decision ruled that Congress lacked the power to impose the individual mandate under the Commerce or Necessary and Proper Clauses. The Court said nothing at all about the similar mandate that applied to the University as an employer, because the Justices had refused to grant review on that question.
Less than a month after the Court had ruled, Libertys lawyers filed their motion for a rehearing. What they sought was a withdrawal of the Courts prior order that simply denied any review of Libertys petition (that was one of several petitions that the Court never accepted for review, but disposed of with simple orders after the health care ruling came out). Libertys rehearing plea asked that, in place of a simple denial, the Court vacate the Fourth Circuit ruling that it lacked jurisdiction, and remand the case to be reconsidered in the wake of the health care decision.
If the Court agrees to do that, Libertys attorneys said, they would renew their claim that the individual mandate was unconstitutional on religious freedom grounds, and that the employer mandate was unconstitutional on all grounds under the Commerce Clause, the Necessary and Proper Clause, and the Taxing Clause.
Ordinarily, the Court simply denies rehearing pleas with routine orders. The other side in such a situation is not even allowed to react to the rehearing petition unless the Court explicitly asks it to do so. The Court held onto the Liberty rehearing plea over the summer a period during which it routinely denied a host of other rehearing petitions, without comment. The Justices took up the Liberty plea at their September 24 Conference, resulting in Mondays order asking the Obama Administration to file a response within thirty days with advice on what the Court should do with the Liberty case. While not signaling what the ultimate disposition might be, that was a sufficient break from the normal practice that it carried at least potential significance.
Under the Courts rules, a party seeking to undo a denial of a petition must show that there have been intervening circumstances of a substantial or controlling effect or a substantial argument that had not been made earlier. Liberty told the Court that its decision in the health care case was the changed circumstance, and it thus wished to take advantage of that when the case got back to the Fourth Circuit in Richmond. A rehearing plea must also carry with it a formal statement by attorneys that they are not asking for relief to delay the case, and that they are making the request in good faith.
Once the Obama Administrations Justice Department files the response sought by the Court Monday, the Court will then act. It has the option, of course, of denying the rehearing petition without giving an explanation, especially if it finds no basis for reviving Libertys claims. There is no timetable for the Court to act on the petition after the government response has been filed at the end of this month.
Kevin DuJan, over at hillbozz, thinks he knows the answer.
“Since the court determined it is only legal as a tax how is it the Feds can impose a tax on tax exempt entities such as a college or church?”
They can’t! That’s the beauty of it!