Why Isn't the Obamacare EMPLOYER Mandate Unconstitutional?

[somarco]

Yesterday Federal Judge Roger Vinson declared the individual mandate in Obamacrap was unconstitutional.

But what about the EMPLOYER mandate?

Beginning in 2014 employers with 50+ employees will come under "play or pay" as outlined in Obamacrap legislation. If employers do not buy health insurance for their employees, they will be fined (taxed).

Beginning in 2014 individuals that do not buy health insurance will be taxed.

If the individual mandate is considered unconstitutional, then shouldn't the same apply to the employer mandate?

Did the attorneys that filed this suit overlook the employer mandate or did the judge?

 

[stuy119]

I don't know the specifics, but the lawsuit might have just been against one aspect of the bill/law at this point due to the severability clause. Leaving other items would give them another challenge, if necessary.

 

[Norwayguy]

Yeah but the Government has already mandated certain requirements of larger employers...I don't know if its Constitutional or if its to late and the cat is already out of the bag.

Cobra
Family Leave act

Things like that.

 

[somarco]

COBRA is simply an extension of group insurance. If the employer does not offer group insurance COBRA does not apply.

FMLA does not require the employer to purchase anything. It does require employer to provide UNPAID leave in certain situations, which does generate an indirect cost, but does not (yet) require an employer to pay for the leave.

 

[Winter_123]

Common judicial practice is to dispose of a case once you have found a reason to do so and leave the rest alone. This is not a rule but a practice. Some judges will venture into the whole enchilada (but this puppy is such a monster that you don't want to start down the road of ruling on all the issues if you can get out of it). Obama and company chose to not put a severability clause in the bill so the whole thing rises and fall as one monstronsity. As soon as one piece won't fly, it kills the whole thing.

Appellate courts may venture into more issues but that is because the district courts below might be raising several issues and are asking for guidance. Also appellate courts (often) and the Supreme Court have more than one judge (justices) so you have to deal with what each justice brings up or seizes upon. Otherwise, if it is just one judge at the district level, then get out of the case as soon as you can.

Basically Obama took a big risk by leaving the severability clause out. (a clause in a bill that says that should any piece of the bill be found illegal or unconstitutional then the rest of the bill still stands). On the plus side, it keeps the courts from tinkering and fiddling with the details because they either validate the whole thing or not. Problem is, the court here went with the "or not."

Keep in mind though that this is just one district judge. People are acting like this judge has killed Obamare. Problem there is that Obama has a decision or two in his favor in other districts on the same issue. Gonna have to sort that out on appeal. This is lose/lose situation for Obama though. If he loses, he loses. However if he wins, he wins in a case where 26 states are against him. Very unpretty. Those states dont just go home and Congress doesnt just go home and say "shoot we lost that one." Lots of follow-on strategies.

 

[somarco]

Obama and company chose to not put a severability clause in the bill so the whole thing rises and fall as one monstronsity.

I understand the original House & Senate versions had this, but the final law did not. If true, care to comment?

Obama has a decision or two in his favor

True, but he did not challenge those decisions, nor ask the Justice dude to file an appeal.

The appeal on this goes to US Court of Appeals in Atlanta where they are one judge short (11 instead of 12). Regardless of what happens there, I would anticipate it will in fact go to the Supreme court, most likely in 2012.

Local experts anticipate a decision from the Appellate Court later this year.

 

[HealthGuy]

Somarco and Winter: When it goes to the supreme court:
1. Do they overturn it with a majority vote?
2. If its overturned, does the whole Obamacrap bill go down in flames, or just the mandate - and Congress is left to tinker with it?

Will it stand, go down completely, or be modified if the mandate "only" is ruled unconstitutional?

This is unclear to me.

 

[Winter_123]

I understand the original House & Senate versions had this, but the final law did not. If true, care to comment?



True, but he did not challenge those decisions, nor ask the Justice dude to file an appeal.

The appeal on this goes to US Court of Appeals in Atlanta where they are one judge short (11 instead of 12). Regardless of what happens there, I would anticipate it will in fact go to the Supreme court, most likely in 2012.

Local experts anticipate a decision from the Appellate Court later this year.

In regard to the removal of the severability clause, I can only stay with my original comments or thoughts which was that the administration feared that a judge might kaibosh the mandate but let the rest of the bill stand so they removed the severability option which put the court in a "take it or leave it" position. I actually did not know they had removed the clause so had been predicting that mandate would bite the dust but that the courts would let the rest stand or at least let other issues come up one by one. Obviously Obama was worrying about that too. He took a risk. He lost.

In regard to "Obama not challenging" some decisions, I was referring to the couple cases he has won such as in Michigan and I can't remember the other one. Actually Obama would not be able to challenge that because he was the winner. The loser has to file the appeal. Not sure where those cases are now.

As I was saying, if Obama were a man and had the best interests of the country in mind, he would ask the Justice Department to petition the Supreme Court to take it direct from the district court in Florida and get resolution here.

 

[somarco]

Well gee, he was a Constitutional law professor. Apparently he didn't learn anything in class.

Winter is the best one to answer your questions, Chad. The Supreme Court has 9 justices.

The current court has 7 Justices, a wise Latino woman and a woman who plays softball and wears comfortable shoes but has never tried or heard a case in court.

Decisions on complex cases are usually along a 5 - 4 vote and this will be no different. I can't say what happens if a Justice has to recuse themselves leaving only 8.

According to Winter, and others who have commented in the real world, if the court case is filed on the basis of Constitutionality, it would appear the entire law would be thrown out, not just a portion.

But I am not a lawyer nor do I play one on TV

 

[Winter_123]

Somarco and Winter: When it goes to the supreme court:
1. Do they overturn it with a majority vote?
2. If its overturned, does the whole Obamacrap bill go down in flames, or just the mandate - and Congress is left to tinker with it?

Will it stand, go down completely, or be modified if the mandate "only" is ruled unconstitutional?

This is unclear to me.

You can't tell in advance for a couple of the usual reasons: 1) it's complicated or at least lawyers and judges finds ways to make it so, and 2) it is real time, you have to see what is going on every month to know what the Supreme Court is going to be looking at. Right now, we are thinking that they are going to be reviewing the Florida case and that makes sense but by the time it reaches the Supreme Court it will probably (but not necessarily) have gone through the appellate court and you have to see what decision/rationale they have piled into the mix.

In regard to whether the whole thing goes down or just mandate, the answer is that if the court flat out agrees with the Florida Court then the whole things goes down. However, the Supreme Court may agree with Florida in that the whole thing is unconstitutional but for different reasons then the Florida court relied upon. Or they may disagree completely with the Florida Court and say Obamacare and the mandate are a constitutional extension of the commerce clause and that everthing is groovy. Or they may set the severability issue aside, unlike Florida, and just start hacking and whacking at what looks good and what does not look good. It will be 5-4 regardless of which way it goes. You can count on that. What a mess.

My view right along has been that mandate would go down but the rest would stand and then Obama and company would regroup and say "okay, we dont have mandate but we are going to get there through carrots and stick incentives so that you will want a government plan for the most part." But as we discussed above, he decided to remove that option for the court and take his chances. If he still had a democratic majority he could let the mandate bite the dust as it did and then fall back to Plan B incentives that I just mentioned. Problem is, he doesnt now. He has gotten whatever he is going to get from Congress.

Believe me, even if he wins, no president wants to implement a program that 26 states are suing to end. He had his little fun January last year and rammed this thing through and outwitted the Republicans but it is like tricking a client into buying something. It's a ticking timebomb.

What a mess.