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Supreme Court Has 'Taxing' Questions about Obamacare

March 25, 2012 - 6:00pm

With public support for Obamacare flat-lining, the president's signature legislation faces round two of a three-day hearing at the U.S. Supreme Court on Tuesday.

A CBS/New York Times poll released Monday showed that just 36 percent of Americans "strongly" or "somewhat" support the law. Other public opinion polls have consistently found a majority opposing the health-care initiative passed by Congress two years ago.

Oral arguments at the high court Monday revolved around an "anti-injunction act" that bars judges from ruling on taxes until those levies have been collected.

The Obama administration has argued both sides of the case -- at one time calling the health-care provisions a tax, and then saying they were a "penalty."

One appellate court upholding Obamacare used the "Anti-Injunction Act" to affirm the law's "tax" on nonparticipating employers and individuals.

But Supreme Court justices appeared unimpressed with that reasoning Monday.

Most of the justices seem skeptical of the claim that the mandate and penalty are a tax. They seem ready, willing and able to reach the merit of the commerce clause claim," said Georgetown University law professor Randy Barnett.

Barnett is legal counsel for the National Federation of Independent Businesses, which has joined Florida and 25 other states in contesting the constitutionality of Obamacare.

Florida Attorney General Pam Bondi said, The Anti-Injunction Act in no way applies or bars the court from deciding the issue of the constitutionality of the individual mandate. The Anti-Injunction Act applies to taxes, whereas the health-care act imposes a 'penalty' on those who fail to get coverage, not a 'tax.'

"The federal government has agreed that the AIA does not apply, which severely undermines its claim that Congress can impose the mandate under its taxation powers," Bondi said.

If the AIA were applied, no court could rule until the tax in question was actually collected. Obamacare's fee and penalty provisions are not scheduled to kick in until 2014.

"It's clearly in the best interest of our citizens and our businesses that the court not delay ruling on the constitutionality of the mandate," Bondi said.

The high court has scheduled an unprecedented six hours for oral arguments, which will conclude on Wednesday.

Paul Clement, former U.S. solicitor general, is arguing on behalf of the states; current Solicitor General Donald Verrilli is representing the Obama administration.

Robert Long, an outside attorney who argued the taxation angle, ran into skepticism from the bench, especially among the conservatives.

Liberal justices, including Elena Kagan, who has been the subject of intense scrutiny in light of her former position as solicitor general under Obama, took a somewhat more oblique tack.

At one point, Kagan told Long:

"You are trying to suggest that the statute says: Well, its your choice; either buy insurance or pay a -- or pay a fee. But thats not the way the statute reads. And Congress, it must be supposed, you know, made a decision that that shouldnt be the way the statute reads, that it should instead be a regulatory command and a penalty attached to that command.

Karen Harned, executive director of the NFIB's Small Business Legal Center, was pleased with Monday's proceedings.

Two years ago, challenges to the health-care law were openly ridiculed as frivolous. Today, they are anything but," she said.

Calling the case "the Super Bowl for American small businesses," Harned said, "Our legal challenge is a fundamental one -- an effort to protect a most basic American freedom.

"Its also an opportunity to reinforce the structural limits of the Constitution that keep the government from insidiously inserting itself into the decisions we make each day about our money, our health and our businesses."

Putting a personal touch on the case, Mary Brown, of Panama City, said poor economic conditions forced her to close her automotive repair business -- and that Obamacare will put her in a tighter financial bind.

As an individual and former small-business owner I am still subject to the individual mandate and will be forced to buy a product that I dont want," said Brown, who remains unemployed.

"I joined this lawsuit because I am an adamant believer in individual liberties and freedom, and I dont want the government telling me what I should or should not buy.

"If the mandate is upheld at the Supreme Court, the government will have all the power they need to force Americans to buy whatever product they want us to. There is nothing more important to the future of our country right now than that this law is struck down.

Data compiled by the Florida Senate found that the cost of the Affordable Care Act to Florida Medicaid will be "significant" to the state's taxpayers.

"Florida is expected to have over 379,000 new enrollees from the expanded [Obamacare] Medicaid population in 2014, at a cost of $1.5 billion, of which $142 million will be paid by the state, bringing the total cost of Medicaid that year to $25 billion," the Senate report stated.

By the end of the decade, Obamacare is estimated to cost Florida $1 billion annually, the report said.

By 2019, Florida Medicaid will have 1.9 million additional enrollees, at an additional cost of over $7.7 billion, of which $1 billion will be paid by the state," the report forecast.

U.S. Sens. Tom Coburn, R-Neb., and John Barrasso, R-Wyo. -- both medical doctors -- also see "a coming state budget-busting Medicaid expansion" under Obamacare.

"Over the past 24 months, American families have learned more about the president's health-care law and do not like what they see. Higher insurance premiums. Fewer choices. Less freedom and more government interference," Coburn and Barrasso predicted.

If Obamacare is fully implemented as written, the senators estimated it will necessitate $2.6 trillion in new spending.

Tuesday's high court session, which begins at 10 a.m., will include two hours of argument on the constitutionality of Obamacare's individual mandate to purchase health insurance.

On Wednesday, justices will hear 90 minutes on the issue of severability. At 1 p.m., the court will hear one hour of argument on expansion of Medicaid programs.

The CBS poll, conducted March 21-25, revealed that six in 10 Republicans "strongly" disapprove of the health-care law while a majority of Democrats approve -- though their support is neither as wide nor as strong as the Republicans' rejection of it.

Two years after Obamacare's enactment, independents break almost exactly 50-50 for and against the law.

But the Kaiser Family Foundation had a more upbeat assessment of the political landscape.

One of the consistent contradictions in public opinion on [Obamacare] is this: While the law as a whole has never gained majority support, its component parts -- from the relatively narrow to the core and comprehensive -- have been consistently popular over the past two years, with the glaring exception of the individual mandate," Kaiser said.

The Foundation applauded the measure's tax credits to small businesses that offer coverage, as well as the "consumer friendly requirement that plans include easy to understand summaries of their benefits and costs, both of which are popular with at least three in four Democrats, Republicans and independents."

Kaiser's own public-opinion surveys found other provisions supported by "roughly seven in 10 overall" include subsidies for individuals to purchase insurance, the ability of consumers to appeal their health plans decisions, the expansion of Medicaid and the elimination of cost sharing for preventive services.

Contact Kenric Ward at or at (772) 801-5341.

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