Last year, the Health Care Freedom Amendment (HCFA) passed the Wyoming Legislature and was signed by the governor. If ratified by ballot this November, the HCFA will provide strong protection against state takeover of health care and an alternative challenge against Obamacare. Even before its ratification, this year the Legislature heeded the spirit of the HCFA by eliminating the Healthy Frontiers program and restricting Wyoming officers and agencies from applying for Obamacare establishment grants until after the ruling in the pending litigation. Not a bad two years as far as Wyoming goes.
But after all this, just as Obamacare is about to enter its third year, the first big showdown is about to begin. One week from today, hot on the trail of the 2012 Budget Session, the United States Supreme Court will begin three days of oral arguments on the constitutionality of Obamacare.
Last Friday the Supreme Court announced that it will provide expedited audio recordings and transcripts of these arguments. For morning arguments, these should be available by noon Mountain Time. We will provide commentary here at the WyLiberty blog beginning Tuesday, and will have a recap of the entire proceeding by Friday.
Professor Brad Joondeph’s ACA Litigation Blog has the breakdown for the three days (5 ½ hours) of arguments. For the average Joe and Jane following Obamacare, Tuesday will be the big day. Arguments then will address the minimum coverage provision, also known as the individual mandate, which is the part of Obamacare that forces each American to purchase qualifying health insurance or pay a penalty. It’s been upheld by the Fourth, Sixth and District of Columbia Circuit Courts of Appeal and overturned by the Eleventh. The federal government justifies this mandate through the supposed effect that not purchasing insurance has on interstate commerce, meaning it can pass the law pursuant to the Commerce Clause (Article 1, Section 8, Clause 3). Of course, if Congress can pass law based on economic activity that citizens do not engage in, there is no limit on federal power. If you have not yet, check out the amici curiae brief we joined for this issue.
Wednesday will also be a big day, when the topic will be Obamacare’s Medicaid expansion. As I discussed at our January First Tuesday panel (beginning in this video at 34:00), under Obamacare we’ve reached a point where federal Medicaid funding is so substantial that states have to kowtow to every federal whim under the program or effectively be a paying, non-participating state in the Union. In 1937, addressing a federal funds issue, the Supreme Court left the door open: “[T]he location of the point at which pressure turns into compulsion, and ceases to be inducement, would be a question of degree, at times, perhaps, of fact.” This is a far trickier—and thus far more interesting—area of the Obamacare arguments, and I’m looking forward to it.
While we will not likely see a ruling from the Court until June, the oral arguments will hopefully give us some idea of where the Justices stand. It will remain pure speculation until that final decision is released, but even speculation will help bolster discussion of where to go whether Obamacare is upheld or overturned.