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Election-driven news and views . . . by Jim Geraghty.

How Cloudy Is the Legal Outlook for Obamacare?


From the Thursday Morning Jolt:

Judges’ Skeptical Questioning on Obamacare: Dare We Dream?

I don’t like to read too much into judges’ questions during oral arguments, because court decisions seem about as reliable an indicator of future events as exispicy – what, you thought I would go with the standard-issue ‘tea leaves’/tasseography reference? — but boy, it’s hard to resist the temptation: “A top Obama administration lawyer defending last year’s healthcare law ran into skeptical questions Wednesday from three federal judges here, who suggested they may be ready to declare all or part of the law unconstitutional . . . And in an ominous sign for the administration, the judges opened the arguments by saying they knew of no case in American history where the courts had upheld the government’s power to force someone to buy a product.”

At Cato’s blog, Ilya Shapiro sounds awfully cheery: “Countless times, Judges Dubina and Marcus demanded that the government articulate constitutional limiting principles to the power it asserted. And countless times they pointed out that never in history has Congress tried to compel people to engage in commerce as a means of regulating commerce. Even Judge Hull, reputed to be the most liberal member of the panel, conducted a withering cross-examination to establish that the individual mandate didn’t help that many people get affordable care, that the majority of people currently without coverage would be exempt from the requirement (presumably due to their income level).

“In short, while we should never read too much into an oral argument, I’m more optimistic about this case now than any other.”

The Lonely Conservative notes that Obamacare opponents really need a broad-based legal win: “Proponents of the law often point out that states require vehicle owners to carry automobile liability insurance. But people can opt out of the mandate by not owning a vehicle. Under Obamacare, the mere fact that you exist will compel you to purchase a health insurance policy. A note of caution: If Obamacare is found to be unconstitutional, let’s hope that the entire law is struck down, and not just the mandate. Otherwise President Obama and his fellow progressives will get what they wanted all along — insurance companies going down the tubes and the government stepping in to fill the void. We’ll have nationalized health care in no time, and can look forward to spending our golden years dehydrated and starving.”

At Outside the Beltway, Doug Mataconis notes: “If the Court sticks to normal practice, we should get a ruling some time by the end of summer if not earlier. At that point, it’s most likely a straight trip to Washington and a probable Supreme Court oral argument in early 2012.”

A terrible economy and an unconstitutional central accomplishment: Obama 2012!

Tags: Obamacare


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