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obamacare 123 EDWARDS AVENUE, SUITE 456 ã PINK HILL, NORTH CAROLINA 28572 PHONE: 252.123.4567 ã FAX: 252.123.4568 YOU@WHATEVER.COM ã http://www.atozpress.com ATOZ PRESS It's All Or Nothing For Obamacare Challengers Today Yesterday was the warmup. Today is when the groups challenging the Patient Protection and Affordable Care Act have to deliver the arguments that will convince at least five justices of the U.S. Supreme Court that the law is unconstitutional. To get there, they first have to
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    It's All Or Nothing For Obamacare Challengers Today Yesterday was the warmup. Today is when the groups challenging the Patient Protectionand Affordable Care Act have to deliver the arguments that will convince at least five justices of the U.S. Supreme Court that the law is unconstitutional.To get there, they first have to get past a menacing hazard that emerged in argumentsyesterday: The justices seemed skeptical of the idea the individual mandate to buy healthinsurance is legally separate from the penalty for failing to do so. If the mandate andpenalty are linked, as the government argues, then the court can find the penalty is thefunctional equivalent of a tax — even though President Obama has repeatedly refused touse that word. And if the penalty is a tax, the law is allowed under Congressional taxingauthority. That would spare the court from deciding the meatier question of whether the law exceeds Congress’s power to regulate interstate commerce.   obamacare     A   T   O   Z   P   R   E   S   S    1   2   3   E   D   W   A   R   D   S    A   V   E   N   U   E ,   S   U   I   T   E   4   5   6   ã    P   I   N   K   H   I   L   L ,   N   O   R   T   H   C   A   R   O   L   I   N   A   2   8   5   7   2   P   H   O   N   E  :   2   5   2  .   1   2   3 .   4   5   6   7   ã   F   A   X  :    2   5   2 .   1   2   3 .   4   5   6   8    Y   O   U   @   W   H   A   T   E   V   E   R .   C   O   M   ã     h   t   t   p  :    /    /   w   w   w .   a   t   o   z   p   r   e   s   s .   c   o   m    “You’ll s ee the challengers trying to come back again and again, arguing that the statute embodies two separate things, a freestanding legal obligation and distinct penalty,” saidAndrew Pincus of Mayer Brown in Washington, who’s argued 23 cases before the Supreme Court. “If it is read as two separate requirements, then the taxing power disappears as a separate basis for upholding the statute, because a freestanding obligation cannot be upheld under the taxing authority.”  It will be the job of Jones Day attorney Michael Carvin, representing the the National Federation of Independent Business, to drive that point home. But even if he does, he’snot finished yet. The court still has to decide whether the law exceeds Congress’ sauthority under the constitutional power to regulate interstate commerce. It could agree the law lies outside Congress’s taxing authority but within the Commerce Clause.   “It does come down to the Commerce Clause,” said M. Miller Baker, another veteran S upreme Court litigator with McDermott Will & Emery in Washington. “The realinteresting part of the debate is on the right wing of court,” he said, because“conservative legal scholars have long been critical of courts substituting their own policy prefere nces for those of the legislature.”  So to find Obamacare unconstitutional, conservative jurists will have to put down theirdistaste for second-guessing the people voters put in office and find that the law is sobroad that it violates the Constitution. The most powerful argument, Baker said, is that Congress had crossed the line into what lawyers call “police power,” or the power to regulate what ordinary citizens do in their daily lives. That power is generally left up tostate and local governments, under the theory they answer more directly to the voters. “It’s an exercise of police power when Congress can penalize you for inactivity,” Bakersaid the argument will run. If the Supreme Court doesn’t step in — as it did to strikedown federal laws banning guns near schools, and violence against women — then “there are no further limits on what Congress can compel you to do.”  The challenge for Carvin is to get around the equally powerful arguments summarized byconservative U.S. District Judge Jeffrey Sutton of the Sixth Circuit Court of Appeals. Lastyear he upheld the law, acknowledging the concerns about Congressional overreach butconcluding that voters will ultimately decide the fate of the law or any other like it.   Baker, like most observers, believe s yesterday’s arguments didn’t accomplish much other than fully air an argument that had convinced at least two federal appeals court judges,that the federal Anti-Injunction-Act prevented this case from proceeding. That law barslawsuits over taxes before they are collected. But Miller and Pincus agreed the justicesseemed skeptical they would adopt that position. The day’s argument did highlight the conflict in the government’s position, which seems to be that the penalty is only a tax when the government wants it to be. The government’s chief lawyer yesterday acknowledged he was arguing the penalty wasn’t a tax subject to the Anti-Injunction-Act on Monday but would be arguing it was a tax Tuesday to slip it under Congress’s taxing authority.   “The government is arguing a position that is inconsistent,” Baker said. “They haveexplanations as to why they’re not consistent, but it doesn’t look good.”  The fight over whether the penalty can be separated from the mandate to buy insurancewas highlighted in an exchange between Gregory Katsas, representing and Chief JusticeJohn Roberts yesterday. The argument was about whether the federal Anti-Injunction Actbars the lawsuit entirely, but Roberts pressed Katsas on how Congress could have writtena law with a penalty disconnected from the behavior it is supposed to punish.Katsas: This statute was very deliberately written to separate mandate from penalty inseveral different ways.Roberts: Why would you have a requirement that is completely toothless? You know, buyinsurance or else. Or else what? Or else nothing.Katsas attempted to argue that Congress might have wanted a free-floating mandate sothat poor people, for example, would feel compelled to sign up for Medicaid even if they didn’t face a financial pen alty for not doing so. The law exempts the poor from thepenalty but not the individual mandate. But Katsas had a hard time explaining to JusticeRuth Bader Ginsburg why anybody would not want to sign up for free healthcare.   If the Obamacare challengers can muster a five-justice majority, Baker believes they willvote only to strip the law of the individual mandate. There are additional argumentsWednesday on whether the mandate can be severed from the rest of the law andwhether Congress was overly coercive in the way it expanded Medicaid programsadministered by the states. But Baker said the most likely outcome if  — and he stressedthat it is a big if  — the court strikes down the individual mandate is it leaves the rest of the law alone. “It will be difficult to find five votes to throw out the entire law,” he said.  
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