Three Days Of Obamacare Before the Supreme Court

It all starts today and where it will end nobody knows:

The landmark hearings will be broken up over the course of three days.

Monday's opener is sure to be a letdown for people looking for a battle royal over health care because the 90-minute argument -- cases before the Supreme Court usually only last an hour -- has absolutely nothing to do with the federal government's involvement in regulating how health care is administered. Rather, it examines whether an obscure tax law passed during Reconstruction prohibits challenges to the Affordable Care Act (ACA).

That statute says no lawsuit can be filed challenging a tax provision -- in this case, the individual mandate requiring Americans to buy health insurance -- until after it's been implemented. All parties in the cases before the Court agree that the 1867 Anti-Injunction Act isn't applicable to the health care law. But one lower appellate court ruled otherwise and a prominent federal judge in Washington D.C. also said the current lawsuits against the controversial law must wait until someone has actually been forced to pay a penalty. That will not happen until 2015.

It's a preliminary issue the high court wanted to resolve, which is why it's the first case, but some people familiar with the Court's docket think it's unlikely the justices will ultimately issue a ruling saying the lawsuits will have to wait. Instead, the thinking goes, they will be eager to move on to the merits of the challenge which are addressed in the week's other cases.

If the Court eventually issues a blockbuster constitutional ruling, it will come from Tuesday's arguments about the individual mandate. The dispute is over the central provision of the law requiring near-universal participation in the new health insurance system.

The government argues it has the regulatory power under the Commerce Clause to force people to buy health insurance, even if they don't want to, because all people must at some time purchase health care and therefore are in the marketplace. "The Affordable Care Act expands access to health care services and controls health care costs by reforming the terms on which health insurance is offered and rationalizing the timing and means of payment for health care services," Solicitor General Don Verrilli wrote in his brief to the Court.

Opponents of the law maintain the breadth of the powerful Commerce Clause does not also allow for the government to force people into commerce. It's something they argue the Founders would never have approved of and wonder why, if constitutional, Congress has never before used this authority given the crises of past generations. "The only explanation for the utter absence of comparable mandates is the utter absence of constitutional authority," lawyer Paul Clement wrote on behalf of the 26 states challenging the law.

The arguments will also feature discussion over whether other parts of the Constitution, including the Necessary and Proper Clause and Congress's taxing power, gives the government cover for the health care law.

Wednesday will be the only day with two cases. The morning argument examines whether other parts of the law will be preserved if the mandate is struck down. Various courts below reached different conclusions and the Supreme Court, if it strikes down the mandate, will have to determine whether to keep some, none, or all of the rest of the law in place.

The afternoon case focuses on the expansion of Medicaid to increase coverage for poorer Americans. The states say costs associated with the expansion will be too much for their treasuries. They also object to the nature of the mandate from Washington saying lawmakers have turned Medicaid away from a federal-state partnership into a compulsory program.

I see basically three possible outcomes:

1. Worst Case:  Obamacare is upheld in full and the slide to financial ruin for the country picks up the pace.
2. Bad, but Better Case:  The mandate is struck down but the rest of the law is allowed to stand.  The Supremes would have to twist the law around to make that work because there is no severability clause in the law which would allow part of it to be struck down while the remainder goes into effect.  The clause got left out during the shenanigans the Dems pulled in getting the billed passed in the first place.
3. Best Case:  The Supremes strike the whole thing down.  This could be both a blessing and a curse for Obama.  A blessing in that it would take Obamacare off the table for the election, but bad because it would represent the complete failure of his signature achievement.  It would also take Obamacare away from him as a tool to use against Romney (he'd still try, but it wouldn't be very effective).

There's some fear that the mandate might not actually be addressed because it hasn't gone into effect yet, and that part of the case could be put off until 2014.  I don't think that will happen because the court knows it's important to settle this issue.  The threat of this hanging over the economy has got to end.