What is the talk on this amongst you all in the legal profession? Do most of you think it's unconstitutional?
I think the mandate's wrong, but to my mind, isn't social security a form of insurance? (aside from being a huge scheme, of course).
Also, would it be more likely for the Supreme Court to grant cert if there were numerous different court rulings? I suppose what I'm getting at is, would it be better for them to file suits separately, throughout the states, to get mixed rulings and increase the chance for the SC to hear it?
The attorneys I know are pretty divided on this issue. Some believe that because the IRS is being put in place to monitor and direct that everyone purchase healthcare or be penalized, the issue (through technicality) becomes one of taxation, not the commerce clause. If that is indeed the case, then there is no way these lawsuits will be successful, at least on that particular section of the bill. Congress can tax and spend to death with pretty much zero judicial interference. I feel that this view is just a smokescreen for three reasons. First of all, from what I can tell, the provision at issue allows people to opt out by paying a onetime penalty ( Like 100 bucks or something). However, if that person becomes sick, they can simply jump back in and buy health insurance at the same rate as everyone else. That's not the way taxes in this country work. While the indigent don't pay taxes, the rest of us can't simply pay a onetime fee and then cease paying taxes until our house is on fire and we need the fire department to show up. Second of all, taxes are deducted from our income, capital gains, etc. However, taxes are not supposed to be levied against individuals as penalties, they are not punitive in nature and they are not supposed to be issued against a particular group of individuals spanning across all 50 states simply because they don't want to purchase something. Finally, on commerce clause grounds, case law is very cut and dried—Congress can legislate over any activity that effects interstate commerce, including intra state commerce that when taken in the aggregate can have a measured effect on interstate commerce. However, never in the history of this country has one piece of legislation twisted and expanded the notion of interstate commerce into virtual omnipotence. If the government can now mandate every American purchase health insurance or be penalized, what’s next? Will everyone have to drive a Prius or be penalized because lower emission vehicles reduce global warming ? Does everyone have to become a vegetarian or be penalized because people who eat meat are generally less healthy than vegetarians and therefore are more likely to cause a strain on the healthcare system? The commerce clause can’t be used as a hammer to flatten the individual’s personal liberty.
There are also 10th amendment issues, 14th amendment issues and the biggest issue nobody seems to be bringing up is whether or not these lawsuits constitute a political question.
Having 100 different state rulings will probably force the Supremes to grant cert., but overall I think the best thing to do would be to roll the dice and just bring it all into the Supreme Court at once to get the issue settled.