What's at Stake in Tomorrow's Hearing?


By Hadley Heath

Tomorrow a panel of three judges will hear the Florida case in Atlanta in the Eleventh Circuit Court of Appeals.  What's at stake in this hearing?

Well, one thing is clear: The constitutionality of the individual mandate will be considered.  As Randy Barnett points out in a piece in today's Washington Examiner: If the government gets away with this mandate, what can't it do? 

The Supreme Court has long abstained from second-guessing the factual judgments of Congress, it is not going to start now, and the government knows it.

The next time Congress decides to impose an economic mandate, the courts will defer to Congress' own assessment of whether another economic mandate is "essential."

Thus, if ACA is upheld here, it will be the last time such a mandate will ever be questioned in a court of law.

But the individual mandate isn't the only part of ObamaCare that will be reviewed tomorrow.  Remember.. the Florida case originally had six counts against the federal government, one of which dealt with the Medicaid expansion.  Is this part of the law Constitutional?  Richard A. Epstein and Mario Loyola take on this concept in a piece in today's Wall Street Journal:

Under the Patient Protection and Affordable Care Act, states have a choice: Expand their Medicaid rolls or bear the full cost of caring for their state's current Medicaid population, while continuing to subsidize the Medicaid programs of other states. The constitutional danger of such a scheme has long been recognized. In 1936, the Supreme Court warned in U.S. v. Butler that if conditional federal grants were not restrained, the taxing and spending power "could become the instrument for the total subversion of the governmental powers reserved to the individual states."

The authors go on to explain that some federal-state relationships have "persuasive" elements (for example, the federal government will be glad to give you that money for your roads... if you keep your state's legal drinking age at 21...), but a line is drawn when the federal-state relationship becomes "coercive," and this is what the Eleventh Circuit must weigh tomorrow.  Is the expansion of Medicaid in the ACA a coercive use of federal power on the states?

The challenge to the individual mandate and the other counts brought by the plaintiffs (now appellees) in the Florida case have a lot at stake for American citizens and the states.  Stay tuned to HealthCareLawsuits.org tomorrow for more information about the hearing.  We'll have reactions from legal scholars, audio files, and more.



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