Obamacare headed for the Supreme Court

It looks like the Supremes will rule on whether or not Obamacare is constitutional:

The Obama administration chose not to ask the 11th Circuit Court of Appeals to re-hear a pivotal health reform case Monday, signaling that it’s going to ask the Supreme Court to decide whether President Barack Obama’s health reform law is constitutional.

The move puts the Supreme Court in the difficult position of having to decide whether to take the highly politically charged case in the middle of the presidential election.

The Justice Department is expected to ask the court to overturn an August decision by a panel of three judges in the 11th Circuit Court of Appeals that found the law’s requirement to buy insurance is unconstitutional. The suit was brought by 26 states, the National Federation of Independent Business, and several individuals. . . .

The issue of the constitutionality of the individual mandate has been widely expected to be decided by the Supreme Court. The key question has been the timing. The Justice Department’s apparent decision to ask the Supreme Court to review the case greatly increases the chances the issue will be heard in the 2011-12 term, which begins Monday.

The Supreme Court now has several strong reasons to accept the case. The court rarely declines requests from the government to take a case, especially in situations in which a circuit court has struck down a piece of a high-profile law.

There is also a split between the appeals courts. The 6th Circuit Court of Appeals has upheld the mandate, the 11th Circuit has ruled it unconstitutional, and the 4th Circuit has ruled that a tax law prevents it from issuing a decision on the mandate until at least 2014.

“The odds are pretty significant the court will take the case now,” said Ron Pollack, executive director of Families USA, which has filed briefs in support of the law.

via Health reform lawsuit appears headed for Supreme Court – Jennifer Haberkorn – POLITICO.com.

Assuming the Supremes take the case, how do you think they will rule?

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • Joe

    They will take the case. Because of the circuit split, there will be chaos if they don’t.

    After they take it, I think they will find it unconstitutional. Whether you love or hate the law, it represents a fairly significant attempt to expand the scope of the commerce clause well beyond what the plain meaning of the text and well beyond the already broad interpretation of that text rendered by past Supreme Courts.

    The individual mandate is simply a bridge too far and the court will strike it down.

    As a side note, there will be a lot of kicking and screaming about whether Kagen should hear the case. It appears that she played some role in crafting the administration’s legal defense of the law before she was appointed.

  • Joe

    They will take the case. Because of the circuit split, there will be chaos if they don’t.

    After they take it, I think they will find it unconstitutional. Whether you love or hate the law, it represents a fairly significant attempt to expand the scope of the commerce clause well beyond what the plain meaning of the text and well beyond the already broad interpretation of that text rendered by past Supreme Courts.

    The individual mandate is simply a bridge too far and the court will strike it down.

    As a side note, there will be a lot of kicking and screaming about whether Kagen should hear the case. It appears that she played some role in crafting the administration’s legal defense of the law before she was appointed.

  • Jonathan

    As I understand it, the president is relying on “interstate commerce” as the hook by which the Congress’ law can be upheld insofar as the individual insurance mandate is concerned.

    As Joe said, I think that logic simply goes too far; that one’s health care decisions with respect to insurance, specifically, the choice not to insure, affects interstate commerce. I predict that part of the law will be struck down.

  • Jonathan

    As I understand it, the president is relying on “interstate commerce” as the hook by which the Congress’ law can be upheld insofar as the individual insurance mandate is concerned.

    As Joe said, I think that logic simply goes too far; that one’s health care decisions with respect to insurance, specifically, the choice not to insure, affects interstate commerce. I predict that part of the law will be struck down.

  • Cincinnatus

    I suspect they will uphold the law. All the liberals, of course, will vote in favor. Scalia has already admitted that his past interpretation of the Commerce Clause permits something like the individual mandate. That doesn’t leave enough people to overturn the law.

    And of course, if they do happen to vote against the bill, they will only overturn the individual mandate portion, not the whole program.

    /also, isn’t it sad that we can speak in terms of how the justices will “vote” on an ideological basis?

  • Cincinnatus

    I suspect they will uphold the law. All the liberals, of course, will vote in favor. Scalia has already admitted that his past interpretation of the Commerce Clause permits something like the individual mandate. That doesn’t leave enough people to overturn the law.

    And of course, if they do happen to vote against the bill, they will only overturn the individual mandate portion, not the whole program.

    /also, isn’t it sad that we can speak in terms of how the justices will “vote” on an ideological basis?

  • Joe

    If they overturn the mandate they will move to the question of severability. That is can they strike down only the mandate. The test for severability asks two basic questions: Without the mandate will their still be a functioning law? And, is there any evidence that congress would have passed the law in the absence of the mandate? The answer must be yes to both or the entire law will be struck down. The second question is generally answered by the presence of a severability clause in the law itself. This law, however, does not contain a severability clause – suggesting (while not proving) that Congress did not intend for this to be piecemealed.

  • Joe

    If they overturn the mandate they will move to the question of severability. That is can they strike down only the mandate. The test for severability asks two basic questions: Without the mandate will their still be a functioning law? And, is there any evidence that congress would have passed the law in the absence of the mandate? The answer must be yes to both or the entire law will be struck down. The second question is generally answered by the presence of a severability clause in the law itself. This law, however, does not contain a severability clause – suggesting (while not proving) that Congress did not intend for this to be piecemealed.

  • http://www.toddstadler.com/ tODD

    Agreed with Joe (@4), but I also, reluctantly, suspect that Cincinnatus is correct (@3). Sigh.

  • http://www.toddstadler.com/ tODD

    Agreed with Joe (@4), but I also, reluctantly, suspect that Cincinnatus is correct (@3). Sigh.

  • Helen K.

    follow

  • Helen K.

    follow

  • DonS

    Joe has the law right, but Cincinnatus is right to be cautious. Recall that the 11th Circuit upheld Judge Vinson’s decision regarding the unconstitutionality of the individual mandate, but reversed his conclusion that the mandate was not severable from the remainder of the law, thus upholding the remainder of the law. I think the mandate will be overturned, but if the rest of the law is maintained, i.e. if the Court affirms the 11th Circuit in full, it will make things worse, not better.

    The Congress will have an opportunity in 2013, should a Republican president win the election, to overturn Obamacare by statute. They should not shirk from doing so, though it will require a great deal of political courage, because the establishment and special interests invested in the new law will be arrayed against them. Perhaps if the individual mandate is struck down, it will give them cover to do the the right thing and re-configure our health system to continue to respect the rights and dignity of those who suffer poor health, especially the right of choice.

  • DonS

    Joe has the law right, but Cincinnatus is right to be cautious. Recall that the 11th Circuit upheld Judge Vinson’s decision regarding the unconstitutionality of the individual mandate, but reversed his conclusion that the mandate was not severable from the remainder of the law, thus upholding the remainder of the law. I think the mandate will be overturned, but if the rest of the law is maintained, i.e. if the Court affirms the 11th Circuit in full, it will make things worse, not better.

    The Congress will have an opportunity in 2013, should a Republican president win the election, to overturn Obamacare by statute. They should not shirk from doing so, though it will require a great deal of political courage, because the establishment and special interests invested in the new law will be arrayed against them. Perhaps if the individual mandate is struck down, it will give them cover to do the the right thing and re-configure our health system to continue to respect the rights and dignity of those who suffer poor health, especially the right of choice.

  • Cincinnatus

    Joe@4: I entirely forgot about the severability clause–or rather, the lack thereof.

    In that case, I suspect that the Court will uphold the law in its entirety. As I noted, Scalia has already explicitly observed that his previous rulings on interstate commerce have left open the possibility of something like an individual mandate. He’ll have to put himself through some torturous logical and philosophical contortions, it seems, to rule otherwise. Then again, Scalia is (in)famous for his wacky logic. Some conservative justice he is…

    Not that I want the law to be upheld. Which brings me to…

    tODD@3: Why is your agreement with me “reluctant”? Not to presume too boldly regarding your political preferences, but aren’t you rather a fan of the healthcare bill, at least in principle?

  • Cincinnatus

    Joe@4: I entirely forgot about the severability clause–or rather, the lack thereof.

    In that case, I suspect that the Court will uphold the law in its entirety. As I noted, Scalia has already explicitly observed that his previous rulings on interstate commerce have left open the possibility of something like an individual mandate. He’ll have to put himself through some torturous logical and philosophical contortions, it seems, to rule otherwise. Then again, Scalia is (in)famous for his wacky logic. Some conservative justice he is…

    Not that I want the law to be upheld. Which brings me to…

    tODD@3: Why is your agreement with me “reluctant”? Not to presume too boldly regarding your political preferences, but aren’t you rather a fan of the healthcare bill, at least in principle?

  • http://www.toddstadler.com/ tODD

    Cincinnatus (@8), specifically, I was referring to your comments on Scalia vis-a-vis the Commerce Clause. I think the reading of that clause is rather tortured at this point, but I also think it’s largely a foregone conclusion. I mean, it’s been, what, 70 years since Wickard v. Filburn? Oof.

    So, no, I’m not a huge fan of the insurance mandate. It strikes me as horribly wrong, though I realize the theoretical reason why it is needed in the law.

    I am sympathetic to the reasons behind this law. I think health care in this country is crazy right now at all sorts of levels. I’m not opposed to some kind of implementation of what could be called “socialized” health care, though for some reason I’d be much less bothered by a system paid for out of taxes than one that legally requires me to purchase a private product. That distinction may not matter much to others.

  • http://www.toddstadler.com/ tODD

    Cincinnatus (@8), specifically, I was referring to your comments on Scalia vis-a-vis the Commerce Clause. I think the reading of that clause is rather tortured at this point, but I also think it’s largely a foregone conclusion. I mean, it’s been, what, 70 years since Wickard v. Filburn? Oof.

    So, no, I’m not a huge fan of the insurance mandate. It strikes me as horribly wrong, though I realize the theoretical reason why it is needed in the law.

    I am sympathetic to the reasons behind this law. I think health care in this country is crazy right now at all sorts of levels. I’m not opposed to some kind of implementation of what could be called “socialized” health care, though for some reason I’d be much less bothered by a system paid for out of taxes than one that legally requires me to purchase a private product. That distinction may not matter much to others.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    A mandate that people buy insurance is far worse than taxing us for it and then providing it like Medicaid/Medicare.

    Also, the health care bill is extremely long and contains everything, including the kitchen sink. So, even if you could sever the mandate, why on earth would you want to keep the rest of it? At least the mandate is actually about making sure people get treatment and that they pay for it. The rest is just what boondoggles, pork barrels and red tape.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    A mandate that people buy insurance is far worse than taxing us for it and then providing it like Medicaid/Medicare.

    Also, the health care bill is extremely long and contains everything, including the kitchen sink. So, even if you could sever the mandate, why on earth would you want to keep the rest of it? At least the mandate is actually about making sure people get treatment and that they pay for it. The rest is just what boondoggles, pork barrels and red tape.

  • http://www.bikebubba.blogspot.com bike bubba

    If they take the tenth amendment seriously, it’s struck down in toto. If they waffle around the question of whether government can require a man to buy a product–say something from the East India Tea Company–it’ll be kept.

    Tar and feathers for those who vote to uphold it!

  • http://www.bikebubba.blogspot.com bike bubba

    If they take the tenth amendment seriously, it’s struck down in toto. If they waffle around the question of whether government can require a man to buy a product–say something from the East India Tea Company–it’ll be kept.

    Tar and feathers for those who vote to uphold it!

  • Joe

    Scalia’s prior jurisprudence on the commerce clause, contemplates that the regulation of non-activity might be allowed in certain situations. I don’t believe he every written anything that held or suggested the gov’t could force you to engage in a specific form of commerce. I think there is hope.

  • Joe

    Scalia’s prior jurisprudence on the commerce clause, contemplates that the regulation of non-activity might be allowed in certain situations. I don’t believe he every written anything that held or suggested the gov’t could force you to engage in a specific form of commerce. I think there is hope.


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