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Politically, Republicans cannot lose a 2012 Supreme Court ruling on Obamacare

Politically, Republicans cannot lose a 2012 Supreme Court ruling on Obamacare

The Obama administration has asked the U.S. Supreme Court to hear the 11th Circuit case which found the Obamacare mandate to be unconstitutional.

There is no absolute right to appeal to the Supreme Court in this case; the Court decides which cases it will take.  Dahlia Lithwick has a round up of various law-blogger views on why the administration took this route, and Lithwick thinks the Court may not take the case.

If the Court does accept the case for the 2011-2012 term, a decision by late June is likely.  Right in time for the national conventions and the heart of the political season.

Retired Justice John Paul Stevens is urging the Court to take the case to provide clarity to voters in the election year.

From a purely political viewpoint, it is more important that the Supreme Court hear and decide the case prior to the 2012 election than it is which way the Court rules.

While of course throwing the mandate out is my strong (overwhelming) preference, politically for Republicans I don’t think it makes a huge difference which way the Court decides the case, as long as it decides the case prior to the 2012 election.

If the Supreme Court finds the mandate to be unconstitutional, it will deflate Obama’s presidency.  In one fell swoop, the entirety of Obama’s agenda will come crashing down.  It will be a political and personal humiliation.

If the Supreme Court upholds the mandate, Obama will be able to crow a little, but such a decision will leave the majority of people who hate the law with but one alternative:  Throw Obama and Senate Democrats out in November 2012.

A pro-Obamacare ruling prior to the election will motivate the Republican base like nothing else, and will bring the independents along.  If you thought the summer of 2009 was hot, just wait until the summer of 2012 if the only way for the nation to get out from under Obamacare is at the ballot box in November.

Legally, Republicans can lose in the Supreme Court on the Obamacare mandate.  Policitally, Republicans cannot lose, so long as a decision is issued prior to the November 2012 election.


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[…] William A. Jacobson at Legal Insurrection (if you don’t have his blog bookmarked, please do so now), has a blog today that really eased my concerns. If you are a pessimist like me, you’ll have thought through the scenario of what would happen should one of the more conservative Supreme Court Justices had to be replaced between now and the Obamacare ruling. To me it was a terrifying thought. But Jacobson has some thoughts: If the Supreme Court finds the mandate to be unconstitutional, it will deflate Obama’s presidency. In one fell swoop, the entirety of Obama’s agenda will come crashing down. It will be a political and personal humiliation. […]

What you say is true; either way, it will fuel the Republicans on, and may even give a late rally cry to the Republican candidate. It will certainly help them either way. Very shrewd move by the states to push the DoJ from their “slow walk” strategy!

I am confused, however, about one thing. The DoJ is appealing the ruling on the mandate – whether it is constitutional or not. However, the states are appealing that the mandate is severable from the law. Is that correct? The DoJ pounded over and over in the initial trial that the mandate is NOT severable; how can they walk that back?

Also of interest to me: I know there are several other cases in various levels of appeal in circuit courts, so why does the “law blogger” consensus seem to be “they won’t take it?” Is that like the “consensus” on global warming? Liberals in an echo chamber? Doesn’t seem logical to me. All I’ve read points to the opposite. Just wanted to hear your thoughts……

You know, after re-reading that piece in Slate, it is clear that these guys are trying to talk themselves into a win on this. To convince themselves that the different rulings will ensure that they will get the SCOTUS to expand the commerce clause to allow mandating purchase of ANYTHING by the federal government on the citizenry or face PENALTIES. Slate, you need a reality check!

It is no where clear that the SCOTUS will rule this mandate as constitutional. Also, John Roberts will not make his ruling on this any less conservative than his prior rulings. Why do they think he would? And to bring up Citizen’s United as a reason they would lean left on this? Waaaaay out there, IMHO. Reality check – again!

Another thing that stood out to me: in one paragraph, they seem to believe Obama will lose in 2012, that Romney will be the Republican candidate – and that he will be the president with the DoJ trying to handle ObamaCare.

The left is really not living in reality. Delusional. At best.

    groundhogchick05 in reply to DINORightMarie. | September 29, 2011 at 6:47 pm

    You seem to have a lot of faith in the Chief Justice. I do not. When it comes to the commerce clause, he doesn’t seem to believe in the original intent like Justice Thomas. I saw a quote of his a couple years ago that give me chills (unless I’m not reading it right):

    “Starting with McCulloch v. Maryland, Chief Justice John Marshall gave a very broad and expansive reading to the powers of the Federal Government and explained generally that if the ends be legitimate, then any means chosen to achieve them are within the power of the Federal Government, and cases interpreting that, throughout the years, have come down. Certainly, by the time Lopez was decided, many of us had learned in law school that it was just sort of a formality to say that interstate commerce was affected and that cases weren’t going to be thrown out that way. Lopez certainly breathed new life into the Commerce Clause.

    “I think it remains to be seen, in subsequent decisions, how rigorous a showing, and in many cases, it is just a showing. It’s not a question of an abstract fact, does this affect interstate commerce or not, but has this body, the Congress, demonstrated the impact on interstate commerce that drove them to legislate? That’s a very important factor. It wasn’t present in Lopez at all. I think the members of Congress had heard the same thing I had heard in law school, that this is unimportant — and they hadn’t gone through the process of establishing a record in that case.”

    If I’m reading this right (again, can’t quite understand this lawyer talk), if the government can prove they legislated the individual mandate because of its affect on the health industry, he is totally fine with expanding the Commerce clause because “that’s what he learned in school.”

    Don’t these people own a copy of the Federalist Papers? It explains the Constitution beautifully.

I seem to be lost here. I thought there were several suits against obamacare and some were ruled in favor by lower couurts and some against, some said only the mandate was unconstitutional and some said all of it was unconstitutional since there was no clause preventing that. Please explain.


    They’re asking SCOTUS to review the specific case that was ruled on by the 11th Circuit. That ruling declared the law to be unconstitutional.

I largely agree with you, with one caveat. Republicans have to stress that Obamacare is bad policy, and must be overturned. Sometimes we’re content to leave things at “it’s unconstitutional” without making the policy case. We’ve done pretty well on that score on this issue, but it’s something we need to keep in mind as the election season progresses. In fact, I wouldn’t even both with the constitutional case just in case SCOTUS does in fact uphold the mandate.

From a strictly political view, you are correct. But from a broader view, a Supreme Court decision affirming Obamacare’s constitutionality would be an absolute disaster for our Country. It would absolutely destroy what little is left of our constitution.

It might raise such an uproar that some needed systemic changes are made, but I’m not sure about that. The needed changes would appear radical to some and the forces that would align against them would be very powerful.

Justice Roberts strikes me as someone who does not suffer fools, writes well-reasoned arguements, and does not “weasel” on tough decisions.

I would give anything to be a fly on the wall when the court discusses this case behind closed doors.

    groundhogchick05 in reply to georgfelis. | September 29, 2011 at 7:48 pm

    What makes you think that? He doesn’t seem like a fighter. When Obama embarrassed the Court at the State of the Union, he didn’t seem to fight back or defend his Court. When questioned, he just said it made him sad. It reminded me of that man on the couch in the psych’s office on that GEICO commercial. If someone just insulted and embarrassed my Court, I would have a lot more to say than “it makes me sad.”

      Not really sure what you mean here, but a Chief Justice, almost by definition is not a “fighter” — he’s a decider. Politicians may be fighters but Justices make judgments, they do not “fight” for them.

      Roberts does not have to be a “fighter” to simply say: “You are wrong. The constitution does not allow that. Sit. Stay.”

      And if he does, Obama (and his vile flunkies) must. Case closed.

I really hope that the Supreme Court finds it unconstitutional. However, we have to keep fighting and keep up the momentum to get it repealed. We cannot depend on them, look at Mc Cain-Feingold. Obamacare cannot stand, it will continue to ruin our lives and our economy. We need to get candidates elected to the House, Senate and Presidency who will repeal this monstrosity. Support your local candidates who promise to repeal Obamacare entirely.

reeks of desperation

The Supreme Court ruled that the police do not have to respond to our 911 calls. They ruled that we are not entitled to Social Security.

Was there ever a case challenging the constitutionality of Congress requiring emergency rooms to treat the uninsured? Isn’t that compelling citizens to provide “free” medical care?

Medicare has a mandatory co-pay on drugs. So, I believe the horse has already left the barn on government imposed “health care” mandate(s).

I suspect the Supreme Court will uphold Obamacare, since they seem fine with existing mandates on people, but not by the government for the people.

I just don’t see Congress or a new President, which may both be controlled by the Republican Party, actually doing a thing about Obamacare.

I hope I’m wrong on both counts.

    sobering reply. i do hope you are wrong as well.

    Owen J in reply to GoldenAh. | September 30, 2011 at 8:30 am

    I think you are. The examples you cite are in no way comensurate with the Obamacare’s mandate.

    And if we elect another congress and another president so utterly debased as to think Obamacare is just fine (despite overwhelming popular opposition to it), we deserve everything we get.

Here’s what I’m afraid of. Imagine this scenario:

The court hears the case sometime in the next 7 to 8 months. It then deliberates and renders a decision between June and August of 2012, but that decision isn’t a straight Constitutional or Unconstitutional, but for the case (in whatever form) to be remanded to one of the Circuit Courts for “further deliberations” regarding the reach of the Commerce Clause as in regard to whether the failure at any given time to purchase a good or service has bearing on whether that person has previously or may in the future need to purchase that good or service.
– end scenario-

Wickard v. Filburn (1942) allowed Congress the authroity to regulate intrastate commerce by expanding an entirely local action into a national action.

What I’m afraid of is that SCOTUS (via Kennedy) may allow Congress the authority to regulate TEMPORAL commerce by expanding the time-horizon of a current decision into the future and the past, regardless of choices made currently (the Liberals current favorite argument that “well EVERYBODY needs healthcare SOMETIME in their lives, so we should force those who don’t need it now to subsidize the system for when they DO need it in the future.”)

If they can do this, then personal property and the 5th amendment compensation requirement will cease to have meaning, because the government will be able to take property (in this case, money) at any time, for any reason, because, at some point in your life, you will “need” some product or service that the government thinks you should have (be it Cable, Internet, City Water, or, a la Castro in Cuba, a Rice Cooker – even if you don’t want or can’t afford rice).

    Anyway, what I’m afraid of is that SCOTUS will punt, and both sides will be able to claim victory short term, the momentum will temporarily evaporate for the Republicans but will stick around for the Democrats because of no outright Unconstitutional finding, emboldening Obama to call for even more confiscatory policies.

MaggotAtBroadAndWall | September 29, 2011 at 1:33 pm

Can you imagine how fired up the Obama-nuts will be if the mandate is upheld? Can you imagine the arrogance and confidence in his bellowing speeches saying the Supreme Court has validated the disastrous path he’s taken the country down if the mandate is upheld? It makes me want to puke just thinking about it.

53% of the country voted for him based on nothing but that HopeNChange crap. If the Supreme Court gives him a win with Obamacare, his base will be just as enthused as those of us on the Right who want it repealed.

I would expect a record historic turnout on BOTH sides.

    It could — or it could go the other way. Leftists are inherently undemocratic in their thought — that is why they favor the courts over elections.

    They may get fired up, yes, but it may be the “Hah! We won!” type of fired up that leaves them at home on election day, thinking how great they are.

    Personally, I think it is more likely that a ruling against them would get them fired up for the election — winning the election would then be then be their only hope to salvage something from the ruins.

Luckily the Plaintiffs in the 26 state action against Obamacare, filed their Petition first, so if the Court takes the case,as it should,the US won’t be able to delay the case until after 2012.

Obama is appealing now because he needs big events in 2012 to shake the campaign up and prevent the election from becoming a referendum on the economy. Either way he will play the result to the hilt – using a favorable decision to validate his agenda to independents and to paint Republicans as obstructionist and uncaring on health care; or using a defeat to demonize the “arch-conservative” court and convince his base to turn out for no other reason than to appoint liberal justices. Secondarily he’s rolling the dice as a committed liberal that the court may uphold the law or open the door to an extended commerce clause so -win or lose in 2012 – the progressive agenda will be easier to implement in the future. If he waits until after the election it may be a Republican DoJ that decides whether to appeal. In short, Obama has little to lose but potentially much to gain by shaking up the storyline next summer.

I tend to disagree. Obama has a lot to lose if the court goes against him. Yes, he may play that to the hilt, but so will his opponents and since public opinion runs about 4-to-1 against him on this issue, his opponents have the better argument. They can portray him as being exactly what he is, with great authority, while he can only appeal to his hard-core base, which is small.

In effect Obama is opting for a pitched battle over his signature issue. There are only two reasons ever to do this: 1) being absolutely sure of victory, or 2) being absolutely sure of defeat otherwise.

But this assumes Obama understands that maxim. All the evidence is that he does not. Obama is a supremely arrogant, deeply stupid individual. The depth and utter impenetrability of his stupidity is not as well appreciated as it should be. (It is almost as dangerous to assume a stupid opponent is not stupid as it is to wrongly assume an opponent is stupid.)

Obama is picking this fight simple becasue he does not understand what he’s doing. If he left it undecided until after the election, when it would not matter — our side would overturn it and his side would have a chance to write a new law with the same awful effects but that would pass muster — he would have an opportunity to exploit the differences of opinion to sway the squishy middle. In his position, this is obviously the best approach.

But he is stupid, so he does not see that. We should not refuse the gift.