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Right Turn
Posted at 11:06 AM ET, 11/14/2011

ObamaCare reaches the Supreme Court

As many expected, the Supreme Court granted certiorari in three ObamaCare related cases. Oral argument, totaling 5 1/2 hours, will likely be set for March. A ruling on the constitutionality of the healthcare law is certain to come before the 2012 election.

Lyle Denniston of SCOTUS blog explains:

The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health insurance by 2014, 90 minutes on whether some or all of the overall law must fail if the mandate is struck down, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled. The Court chose those issues from appeals by the federal government, by 26 states, and by a business trade group. It opted not to review the challenges to new health care coverage requirements for public and private employers. It left untouched petitions by a conservative advocacy group and three of its members and by Liberty University and two of its employees.

Randy Barnett, one of the key architects of the challenge to the individual mandate emails me: “It is high time for the high court to strike down this unconstitutional, unworkable, and unpopular law. Upholding the individual mandate would end the notion that Congress is one of limited and enumerated powers, and fundamentally transform the relationship of Americans to their doctors and their government. “

This is easily the most consequential issue to come before the SupremeCourt in decades. If the individual mandate is struck down, the Supreme Court would accept view of the constitution and federal power championed by conservative legal scholars and advocates, namely that the federal government is limited in powers and may not use the Commerce Clause and/or the Necessary and Proper Clause as carte blanche to control every aspect of Americans’ lives. If the challenge to ObamaCare is rebuffed, advocates of the “living Constitution” (that is, judges can tell us when and how they’d like to reconstruct the Founders’ handiwork) will have established that there is virtually nothing the federal government can’t do apart from those actions specifically barred by the Constitution (including the Bill of Rights and other Amendments).

Ilya Shapiro, a CATO scholar and advocate for repeal, puts it this way: “The Supreme Court has set the stage for the most significant case since Roe v. Wade. Indeed, this litigation implicates the future of the Republic as Roe never did. On both the individual-mandate and Medicaid-coercion issues, the Court will decide whether the Constitution’s structure—federalism and enumeration of powers—is judicially enforceable or whether Congress is the sole judge of its own authority. In other words, do we have a government of laws or men?”

As consequential as the decision will be, it’s far from clear what political impact it will have. Will the majority of Americans who disapprove of the law be satisfied if the law is struck down, and less inclined to vote the president out of office? Or will those who opposed ObamaCare be emboldened and determined to use the election to rip out what remains of ObamaCare?

From the president’s perspective either result is problematic. If it is struck down, his base is certainly demoralized and his sole legislative accomplishment is largely (or entirely) invalidated. This would certainly underscore the folly of spending as much time and political capital as he did on an unconstitutional piece of legislation. Conversely, if it is upheld, repeal of ObamaCare likely becomes a more prominent issue in the campaign, with conservatives determined to repeal it despite the court’s ruling.

In the GOP presidential primary it will, I suspect, less of a factor than we imagined. No decision will come down prior to the selection of a nominee. Those who don’t trust Mitt Romney to repeal ObamaCare (I suppose thinking he’ll veto a possible bill to repeal it sent to his desk?) and abhor RomneyCare have already, I suspect, made up their minds not to support him in the primary. And those who don’t see RomneyCare as a disqaulifier and/or who figure Romney will have no choice if elected but to support “repeal and replace” will likely be indifferent to the court’s action.

For now, however, we can look forward to an epic legal battle and a debate about what sort of federal government we have. If nothing else, the country should get a marvelous tutorial in constitutional law and the role of the courts.

By  |  11:06 AM ET, 11/14/2011

Categories:  law, Obamacare

 
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