Obamacare goes to Supreme Court: Today's arguments

Ernie Shannon's picture
US Supreme Court takes on Obamacare and health insurance

As historic as the Supreme Court hearing regarding the constitutionality of all or parts of the Affordable Care Act this week might be, there’s a narrow neck the justices must travel that could block any further deliberations or unleash the expected heated discussions.

That thin line is an 1867 federal law barring courts from ruling on measures until they are fully implemented by the federal government. The justices heard arguments today on just that issue given that the new health care law is not fully effective until 2014. Proponents of a decision to proceed with the hearings have said all along that since aspects of the law are already operable and impacting individuals, businesses, and state and local governments, the court is well within its rights to hear the case.

If the nine justices decide they can move forward with hearings, the crux of the matter will be whether the federal government can compel anyone to purchase a product – in this case, health insurance. U.S. Solicitor General Donald Verrilli, who will argue the case for the Obama administration, said today the 1867 law did not apply because Congress was imposing a penalty, not a tax.


The designation one attaches to the Affordable Care Act is key. Department of Health and Human Services staff members have referred to the law as both a tax and a penalty depending on the Congressional hearing. They have backed away from the tax nomenclature when the Obama administration has highlighted its record of no tax increases. On the other hand, to refer to the law as a penalty should an individual be fined for not purchasing insurance puts the measure at greater risk in front of the Supreme Court.

By the same token, the act’s opponents have struggled to depict the health care policy as a decree from Congress when so little of the law has been implemented to date. In fact, the sections of the regulation that most concern opponents will not become law for another 21 months.

A sign of just how contentious the hearings could become around the Supreme Court building was in evidence today when a representatives from a coalition of churches rallied in support of the law even as GOP presidential candidate Rick Santorum spoke in opposition to it elsewhere on the high court grounds.

The churches spokesperson said, “We believe this bill, although not perfect, takes us closer to having more people covered for health care and also prevents insurance companies from denying people health care because of pre-existing conditions.”

Ohio Attorney General Mike DeWine responded, “The real question for us is whether or not the federal government can compel every citizen of the United States to buy a particular product. If the answer is yes, there really is no limit to what Congress can do and what the president can do as far as taking away the liberties of the American people.”