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ObamaCare preview -- 5 things we can expect to hear argued before the Supreme Court

A week from today, the case of our lifetime will begin to unfold as the Supreme Court commences its three-day review of ObamaCare. While the policy and political implications of this case are compelling, even those consequences are fleeting when compared to the constitutional precedent that will be set and the American freedoms at stake. 

The core challenge to the health care law is the argument that the individual mandate—Congress’ requirement forcing Americans to buy health insurance—is not only draconian, but grossly unconstitutional. 

This challenge was initially derided as political grandstanding rather than a serious legal argument, but that criticism has been largely silenced by the numerous federal courts that have agreed with the challengers -- not to mention the Supreme Court’s virtually unprecedented decision to hear three days of oral argument. 

The National Federation of Independent Business (NFIB), along with our 26 state co-plaintiffs, will argue that the mandate is not only unconstitutional but that it also cannot be severed from the rest of the law, i.e., the entire law should be struck down if the mandate is ruled unconstitutional. 

Here is a preview of what you can expect to hear argued before the Court from NFIB: 

1. THE INDIVIDUAL MANDATE

The government will argue: The individual mandate is necessary to achieve Congress’ goals of lower costs and increased coverage. 

NFIB will argue: Never in our history has the government forced individuals to buy a costly and unwanted product for the benefit of other individuals who do want to buy that product. If the mandate is constitutional, there will be nothing that the government isn’t allowed to mandate Americans purchase. There are other ways for Congress to lower costs and increase coverage that do not involve violating the Constitution. 

2. THE MANDATE IS CONSTITUTIONAL

The government will argue: The mandate is constitutional because the Commerce Clause gives Congress the authority to regulate the sale of goods and services, such as health insurance.

NFIB will argue: Congress has authority to regulate commerce but not to force people to engage in it. The government cannot compel individuals to enter a marketplace they do not want to enter – i.e., the government has no authority to compel a healthy, young individual to purchase health insurance they do not need nor want. For example, Congress can force those who have chosen to enter the car market to purchase insurance, but it cannot require pedestrians to buy car insurance simply in order to lower prices for current drivers. 

3. THE 'FREE RIDER' PROBLEM

The government will argue: The individual mandate takes care of the “free rider” problem where people with insurance are paying for those who are uninsured and don’t pay their medical bills. 

NFIB will argue: The mandate treats every uninsured citizen as if he is a “free-rider” cheating his neighbors, but that’s not the case. For every uninsured person who uses free emergency care, there are thousands of other healthy people who are paying for coverage that they never use. 

Congress cannot lump all these people together. 

In reality, the individual mandate has almost nothing to do with cost-shifting in health care. The targeted population – the young, healthy, people who voluntarily choose not to purchase insurance – have a minimal role in the $43 billion of uncompensated costs identified by the administration. The individual mandate cannot reasonably be justified as a remedy for the alleged costs imposed on the system by the voluntarily uninsured. 

4. THE INDIVIDUAL MANDATE AS A TAX

The government will argue: The individual mandate is a tax. Wait, no, it’s a penalty, because we promised not to raise taxes. Actually, yes, it really is a tax - so the mandate is constitutional under the government’s taxing powers.

NFIB will argue: Government officials, including President Obama, have fervently denied the mandate was a tax yet now government lawyers are claiming the mandate is a tax. The government had it right the first time. Taxes and penalties are different things. Taxes are levied to raise revenues to pay for government expenditures that benefit the tax payers, while penalties are imposed as a punishment for breaking the law. And that is how the individual mandate works: it legally requires virtually every American to buy insurance, and imposes a monetary penalty on those who fail to comply. 

5. THE INDIVIDUAL MANDATE AND ITS RELATIONSHIP TO THE HEALTH CARE LAW

The government will argue: The individual mandate is essential to certain parts of the health care law but not to others. If the mandate is struck down, only the provisions that ban insurers from discriminating against those with preexisting conditions should fall. The remainder of the law can remain intact.

NFIB will argue: The mandate is essential to the entire law, not just parts of it. Removing the mandate and allowing other provisions to remain is akin to removing the engine of a car and expecting it to run. Without the inclusion of the mandate, nothing even remotely resembling the current law would have been passed by Congress or signed by the President. 

Bottom line: there is no escaping the reality that the individual mandate is unprecedented and unconstitutional. For the sake of this great country, its small businesses, families, entrepreneurs and future generations, we hope that the Court sees it the same way as we do. 

Karen Harned is the executive director of the National Federation of Independent Business Small Business Legal Center.

Karen R. Harned, esq. is executive director of the NFIB's Small Business Legal Center.