Shurtleff expects Obamacare to be overturned

Utah Attorney General Mark Shurtleff told Sutherland Daily today that he believes the U.S. Supreme Court will vote 5-4 to strike down the Patient Protection and Affordable Care Act (PPACA), or Obamacare, as opponents of the legislation (and even many of its supporters) call it.[pullquote]It is one of the most important cases in the history of the U.S. Supreme Court…because it comes down to the fundamental relationship between the individual and the government.[/pullquote]

The vote will hinge on Justice Anthony Kennedy, Shurtleff said in a phone call from Washington, D.C. Kennedy’s question during the early stages of today’s arguments asking, “Can you create commerce in order to regulate it?” heartened Shurtleff because that is one of the key questions the 26 states involved in the suit are asking. But Kennedy also raised a concern near the end of today’s session, saying that a young person who is uninsured does in fact affect the cost of everyone else’s insurance, which is the thrust of the government’s defense.

“That’s the feds’ argument – that they’re not creating commerce – that people who aren’t insured are already in the stream of commerce because they raise the cost for everyone else,” Shurtleff said. 

While Kennedy’s final question does give Shurtleff pause, he believes Kennedy will ultimately side with Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas in striking down Obamacare.

The government has two main arguments, Shurtleff said. The first is that the health care legislation is a tax and is therefore constitutional under Congress’ taxing authority.

“It was brought up again today by several justices that the president of the United States has said this is not a tax,” Shurtleff said. “It made the federal government’s argument look two-faced, clearly. They didn’t want to call it a tax because, for political reasons, they didn’t think they could pass a tax. They say it’s not a tax but then they come into court and say it is.”

The second argument made by the federal government is that Obamacare is legal because of the power to regulate commerce given to Congress in the Constitution.

“Chief Justice Roberts, Justices Scalia, Alito and even Justice Kennedy suggested that this was the first time in the history of this country that the federal government really mandated that an individual buy something, buy a product or service, and if you didn’t, your inaction would be penalized and you would be forced to pay a penalty.

“If we allow this law to stand, what is next?” Shurtleff asked. “It seems like you will allow Congress unlimited power to get involved in every single aspect of our lives. It is one of the most important cases in the history of the U.S. Supreme Court, and that’s saying a lot. But it’s because it comes down to the fundamental relationship between the individual and the government.”

Shurtleff believes Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor will vote to uphold Obamacare as constitutional in favor of the federal government. Justice Breyer argued that the mere fact of being born puts an individual in the stream of commerce when it comes to health.

“As soon as he said that I leaned over to the South Carolina attorney general and said, ‘He’s making a cradle-to-grave argument,’” Shurtleff said. “And within a fraction of a second of me saying that our counsel said, ‘Your honor, that is a cradle-to-grave argument and we don’t accept that it’s the responsibility of the federal government to take care of us from cradle to grave.’”

Chief Justice Roberts said one could compare government’s involvement in health care and the requirement to purchase health insurance with emergency services, such as “police, fire, ambulance, roadside assistance, whatever.” Roberts argued, “You don’t know when you’re going to need it; you’re not sure that you will. But the same is true for health care. … So, can the government require you to buy a cell phone because that would facilitate responding when you need emergency services?”

The third and final day of arguments will be heard tomorrow, with a decision from the court expected in June.

Shurtleff also explained that Utah’s 2010 law stating that no Utahn will be required to buy insurance was the key component that gave states standing in the current lawsuit. The law was signed by Governor Gary Herbert a day before President Obama signed the Patient Protection and Affordable Care Act. Utah was the only state to have such legislation in place before Obamacare was signed.

“That established standing for all the states,” Shurtleff said, “and it was of critical importance in the overall picture.”