The Washington Post has reported that the Supreme Court will take up the question of the constitutionality of the Obama health-care law. This is unquestionably good news for conservatives and opponents of the law. First, there is the obvious point that if they didn’t take up the case, the challengers would be out of legal options. As long as the case is proceeding, there remains the real chance that the Supreme Court, which does have a 5–4 conservative — albeit unreliable — majority, can overturn it.
The fact that the oral arguments will be heard, and the court decision will be made, ahead of next November’s election is good news as well. If the Court overturns the individual mandate, such a decision will highlight the unconstitutional basis of the Obama law and bolster the political case for its full repeal. If the Court upholds the law, that would certainly be unfortunate, but it would also serve as a stark notification that an Obama win in 2012 could cement the health law in place for the foreseeable future. This closing of the option for judicial repeal would galvanize conservatives and all opponents of the law in advance of the 2012 election. Either way, today’s acceptance of the case by the Supreme Court allows the law’s opponents to continue the struggle for repeal and the eventual movement towards a workable kind of health reform.
This "good news" was practically inevitable given the circuit split. I don't see it as news.
Reply to this commentLinkReport AbuseIf it wins 5-4, a whole bunch of low-information voters will take it as the Good Housekeeping Seal of Approval.
Reply to this commentLinkReport AbuseLike Roe v Wade?
Reply to this commentLinkReport AbuseAnd if it is upheld 5-4 the same will happen.
Reply to this commentLinkReport AbuseIf they uphold the individual mandate for health insurance I suppose that will mean a republican congress can mandate as public health is taken care of for public safety reasons there will be an individual mandate to own a firearm.
Or we can elect republicans on a promise of defunding Obamacare in lieu of repeal, oh wait...
Reply to this commentLinkReport AbuseI think Mr. Troy is way of the mark. All four Democrat nominees to the Court will vote "for" Obamacare. Roberts and Alito will vote for it because they are big government conservatives. We only have a "pool" of three possible no votes. Thomas is a no on the mandate. Scalia may be against but may not believe the Court can sustain a fight against Congress on economic policy and so once again be a soft originalist. Kennedy will not like the Government's failure to offer any limiting principle but I don't know if that will let him vote with Scalia. Best case scenario 6-3. worst case 8-1.
Reply to this commentLinkReport AbuseWill Elena Kagan recuse herself?
I think the Obama regime has enough leverage to get the result they want. It won't be a matter of what the Constitution allows; it will be a matter of preserving Washiogton's power.
Reply to this commentLinkReport AbuseFat chance of Kagan recusing herself. Power is what they crave, and they aren't giving it up without a fight.
Reply to this commentLinkReport AbuseKagan should recuse herself. That leaves a potential 4 to 4 deadlock.
However, the more I think about it, the more I think this is an opportunity for Roberts to lead a majority to a very narrow ruling that will make him look good and effectively still kill Obamacare because of the positive effect it will have on the republican vote in the fall.
Reply to this commentLinkReport AbuseLet's say the Supreme Court says ObamaCare is good to go. At some point then they are going to have to show why the 9th Amendment--an actual amendment--never seems to stop anything, but somehow a "penumbra" does (and does hard).
Now, I personally do not believe there is a "right to privacy" per se in the Constitution, as I understand the Court has defined it, though I do believe there is an assumption of it running through the warp and woof of our Anglo-American legal and political heritage. But if there *is* one embedded in the Constitution, then how is directing me on medical issues not a violation of it?
Reply to this commentLinkReport AbuseI agree, in a piece of irony, that affirmance will greatly help the republicans in motivating voters to throw it out legislatively. I'm not so sure about the analysis of the political impact if the mandate is ruled unconstituational:
"If the Court overturns the individual mandate, such a decision will highlight the unconstitutional basis of the Obama law and bolster the political case for its full repeal."
I think it would give the democrats room to argue that the conservative supreme court took away health insurance form 40 million people, without the burden of having to defend the full law.
Reply to this commentLinkReport AbuseRight, it would motivate the left. Remember the Court Packing plan?
Reply to this commentLinkReport AbuseIt's interesting that, to my knowledge, no one on NRO commented on the decision of the DC Circuit last week upholding the constitutionality of PPACA and the individual mandate. The panel judges were, apparently, conservatives/republican appointees. Ignore the bad news?
Reply to this commentLinkReport AbuseKevin,
Become enlightened before you post.
Reply to this commentLinkReport AbuseLeft-leaning law "experts" are already getting their hopes up that SCOTUS will punt until 2014 on Anti-Injunction Act grounds. They're pointing to the fact that the Court ordered an hour of oral arguments on just that question
Reply to this commentLinkReport AbuseCounsel favorable to Obama could file feces instead of a brief and the Dem four would vote to uphold it. He or she could actually defecate on their bench by way of argument and rule the day with them. No intellectual argument could change the ruling that will be made by these four. It's the other five that matter.
Reply to this commentLinkReport AbuseSo you don't believe there are at least four votes that are just as ideologically inclined to strike down the ACA?
Reply to this commentLinkReport AbuseNo, I don't. I can conceive of one or more of the remaining five voting to uphold a mandate or uphold Obamacare. I can't conceive of one of those four having an intellectual epiphany and voting against it. Pretty simple.
Reply to this commentLinkReport AbuseWell, I agree with you as to one (Kennedy). He could possibly vote with the Dems. And maybe he would rule that the entire case is premature under the Anti-Injunction Act.
However, Thomas, Alito and Scalia are definite nos on the ACA in my thinking. Roberts has also shown partisan stripes in Citizens United, a case in which the majority had to manufacture an issue that was never raised by the parties and which had been disclaimed as an issue in the lower courts. Citizens United is what a true activist Court looks like
Reply to this commentLinkReport AbuseIf Antonin Scalia and Clarence Thomas dines with the law firm Clement’s law firm, Bancroft PLLC, one of almost two dozen firms that helped sponsor the annual dinner of the Federalist Society, a longstanding group dedicated to advocating conservative legal principles and were fed at the same table by Pfizer, Inc., a huge pharmaceutical conglomerate, one would hope they abide by rules and ethics associated with their stature in the legal community. If these two do not recuse themselves from this case, then none should recuse themselves. Now, I ask every American citizen in America to consider the implications of any ruling unfavorable to the Health Care Act. Here's where I say again: The concentration of wealth in the hands of fewer and fewer people and the concentration of power in stricter, less compassionate hands in all aspects of local, state and the federal government has colored the American dream.
Reply to this commentLinkReport Abuse