Reading the Health Care Law Tea Leaves Ends, Presidential Campaign of 2012 Begins

The intense interest in how the Court will rule on the Affordable Care Act (aka "Obamacare") has become a National obsession. The pundit class in Washington, DC has had a field day. The self styled experts, along with some who actually know what they are talking about, have filled our television screens, our laptops, our smart phones and our radios with daily speculation, prediction and prognostication. The Health Care Tea leaves have been read so many times they are beginning to wear thin.On Thursday, June 28, 2012 at ten (10) AM, EST, the wait will be over.

P>WASHINGTON, DC (Catholic Online) - As a lawyer who has practiced for 32 years, I am not sure I have ever seen the broad interest in the outcome of a Supreme Court Case. Many of those years were spent in constitutional law, dealing with Free Speech, Free Assembly, Free Exercise and Establishment clause cases.  I dedicated much of my career to championing pro-life, pro-family and pro-freedom causes and cases. So, I watch the decisions of the US Supreme Court closely. I participated in a few and am a member of the Supreme Court Bar.

The intense interest in how the Court will rule on the Affordable Care Act (aka "Obamacare") has become a National obsession. The pundit class in Washington, DC has had a field day. The self styled experts, along with some who actually know what they are talking about, have filled our television screens, our laptops, our smart phones and our radios with daily speculation, prediction and prognostication. The Health Care Tea leaves have been read so many times they are beginning to wear thin.

Thursday, June 28, 2012, at 10 AM, E.S.T., we will know what those "tea leaves" really said about the future of this legislation. We will also know how the campaign for the Presidential election of 2012 will unfold after the Nation pauses for the Fourth of July holiday. This massive piece of legislation is the major contribution of the Obama Presidency, for better or for worse.

In March, the Justices listened to six hours of oral arguments on this case. Some of the legal wonks reading the tea leaves wonder if the Court will even decide the underlying issue - whether the so called individual mandate which compels consumers to buy health insurance or not is constitutional. This relates to the application of the Federal Anti-Injunction Act enacted in 1867. Congress sought to keep the government running back then and required that before any tax law can be challenged it has to first go into effect and there must be an injury - the payment of the tax or the penalty.

This explains the arguments as to whether the penalty provisions of the Affordable care Act were a tax or not. These tea leaf readers speculate that since those who violate the mandate by failing to purchase insurance by 2014 will not have fines levied against them until 2015, there is no injury. However, most sane people acknowledge that the US Supreme Court would not have heard the arguments at all if they were going to choose that option.

So that brings us to the fundamental and monumental legal issue the Court will most certainly address. Whether what the Affordable Care Act calls the "minimum coverage" provision, the mandate which compels the purchase of health insurance, is constitutional. Does this provision violate the Commerce Clause by compelling consumers to buy a product or face the punitive power of the Federal Government?

The Commerce Clause is found in Article 1, Section 8, Clause 3 of the U.S. Constitution and gives Congress the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." It is the interpretation of that Clause, so integral to the relationship between the federal and the state governments, which is at issue. Does this particular provision force or compel consumers into commerce rather than regulate commerce?

If a majority of the Justices find that the individual mandate is unconstitutional, most observers agree that the Act has lost both its mechanism and its guts. It is an empty shell, a carcass. The question then becomes whether what is left of this voluminous piece of legislation will remain. There is no severability or savings clause within this poorly drafted legislation. Such clauses are routinely placed in simlar Acts to ensure that they will survive such Court scrutiny. 

So, will the US Supreme Court simply treat what is left of this massive legislative scheme as if there was a severability clause and leave it to Congress to deal with what meat there is left on the bones? Will they act like a Legislature, going through this voluminous Act and rewriting it themselves? Or, will they find the entire Act to be unconstitutional because it is so integral to the legislative purpose?

On Thursday, June 28, 2012 at ten (10) AM, EST, the wait will be over and we will know the answer to these and many other questions. Of course, the spin doctors and pundits will be all over this opinion. The Courts decision will be posted on their own web site and you can read it here. Along with millions of lawyers and correspondents, I will also visit the Supreme Court's blog . However, whatever the result, there will be a new set of tea leaves at the bottom of the cup and the entire process will begin again.

One thing is clear; the presidential campaign of 2012 will form itself around the agenda which proceeds from this landmark Supreme Court case. Look for this opinion to frame what I believe is the most important Presidential elections in my lifetime.

The Battle for Catholic Education - Prevent the Collapse Now!

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