The U.S. Supreme Court has released its November calendar for oral arguments, and two blockbuster cases are scheduled to be argued during the week following Election Day. One combines the issues of religious conscience, the definition of marriage, and foster care agencies’ dealings with local government. The other has to do with the constitutionality of Obamacare. Both promise to attract a lot of media and political attention.

Fulton v. Philadelphia involves the right of a faith-based foster care agency – in this case Catholic Social Services (CSS) – to operate according to its beliefs that marriage between one man and one woman is the only acceptable union for raising children. Although it had never been asked by a same-sex couple to certify them as acceptable foster parents, CSS received a demand from the city that it agree to do so, after a reporter raised the issue in 2018. When the agency refused, Philadelphia stopped allowing any families to foster children through it. CSS has been providing social services to the city for over 100 years.

CSS sued the city, claiming the city violated its First Amendment religious freedom rights, and asked for an injunction that would block the effect of the city’s action against it until all the constitutional issues could be resolved. Its request was denied by a federal district court. CSS appealed to the 3rd U.S. Court of Appeals and lost again. It then requested the Supreme Court to hear its case, which agreed to do so earlier this year.

The justices will hear arguments on Wednesday, November 4.

Obamacare is the other topic on the high court’s docket right after the election. In two consolidated cases, Texas v. California, and California v. Texas, the issue is whether the 2010 Affordable Care Act, aka Obamacare, is still constitutional after Congress in 2017 acted to effectively eliminate the “individual mandate” aka “shared responsibility payment” by reducing it to zero dollars. That payment requirement played a major part in the Supreme Court finding the entire Obamacare law to pass constitutional muster as a “tax” in National Federation of Independent Business v. Sebelius (NFIB v. Sebelius) in 2012.

The case lines up red states, hoping to torpedo Obamacare, versus blue states, attempting to retain it. The argument for declaring Obamacare unconstitutional goes something like this:

-Chief Justice John Roberts’ majority opinion in the 2012  NFIB case declared that the individual mandate, which forced people to buy health insurance upon pain of paying a certain sum of money to the IRS for failing to do so, could only be justified as a constitutional exercise of Congress’ authority under the taxing powers contained in Article I, Section 8 of the U.S. Constitution.

– Congress in 2017 revised the individual mandate to zero dollars.

– The individual mandate was the primary provision that drives the workability of Obamacare; without it, the entire statute fails of its purpose.

– Since people no longer have to pay a tax for failing to carry health insurance, Obamacare can no longer be justified as a “tax” provision. Therefore, it is now outside of Congress’ authority and unconstitutional.

Even if the initial argument is successful – and legal scholars are split on whether it will be – the  Court could find that the individual mandate provision is “severable” from the rest of Obamacare. This means that the statute’s essential functions are not impaired by a finding of unconstitutionality of that particular clause. If severability is the Court’s decision, the rest of Obamacare will remain.

Many of Obamacare’s features have proven popular with the public, such as “guaranteed issue,” i.e. insurance companies not being allowed to turn down applicants because of preexisting medical conditions. President Trump has promised to support inclusion of those popular provisions in whatever law Congress subsequently passes if and when Obamacare is declared unconstitutional in this case.

The Obamacare case will be argued on November 10.

Photo from Becket Law


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