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Supreme Court to take Obamacare case this term

Supreme Court to take Obamacare case this term

The Supreme Court has just announced that it will take the Obamacare litigation, meaning that a decision will be rendered on the individual mandate, if not the entire law, by the end of June.

As reported in USA Today:

The Supeme court said today it will hear arguments on the constitutionality of the Obama health care plan by March of next year, Reuters reports.

The timing means the court will deliver its decision in the summer, only a few months before the 2012 presidential election, USA TODAY’s Joan Biskupic reports.

The determination was part of a series of Orders released by the Court this morning.  The cases accepted are the Florida litigations, limited to the following questions:

FLORIDA, ET AL. V. DEPT. OF H&HS, ET AL. – “The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.”

Question 1 was “Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.”

DEPT. OF H&HS, ET AL. V. FLORIDA, ET AL. The petition for a writ of certiorari is granted. In addition to Question 1 presented by the petition, the parties are directed to brief and argue the following question: “Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act, 26 U.S.C. §7421(a).”

NAT. FED’N INDEP. BUSINESS V. SEBELIUS, SEC. OF H&HS, ET AL., FLORIDA, ET AL. V. DEPT. OF H&HS, ET AL. – The petition for a writ of certiorari in No. 11-393 is granted. The petition for a writ of certiorari in No. 11-400 is granted limited to the issue of severability presented by Question 3 of the petition.

When you add it all up, the Court will address the mandate, whether the lawsuit is barred because the mandate is a tax which has not yet come into effect, and whether the mandate is severable. In other words, just about all of the important legal issues appear to be on the table.

The decision will come in the middle of the campaign season, after a Republican nominee is all but selected.  I stand by my view that the decision to take the case puts Obama in a no win situation politically:

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.

Update:  SCOTUSBlog notes that the Justices have allotted a record amount of time for oral argument:

The allotment of 5 1/2 hours for oral argument appeared to be a modern record; the most recent lengthy hearing came in a major constitutional dispute over campaign finance law in 2003, but that was only for 4 hours.

And, it does not look like Elena Kagan recused herself from consideration of the cert petitions, so expect her to be part of the decision, notwithstanding very strong evidence that she had some level of prior involvement when Solicitor General.


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I wonder if Obama now regrets denigrating and embarrassing the entire Supreme Court on national TV during a joint session of the US Congress.

    DINORightMarie in reply to Henry Hawkins. | November 14, 2011 at 10:29 am

    Nah. He is too self-absorbed and narcissistic to let that cloud his high view of his actions.

    After all, he IS “Teh 0ne” we’ve all been waiting for. Teh 0ne who doesn’t make mistakes – he just “hasn’t explained thing clearly enough” to the stupid, red-necked rubes, dontcha know.

    We wouldn’t understand how WRONG they (the SCOTUS) are……neither do those Justices. The Anointed One knows better than some wrong-thinking rightie, after all. /sarc

    Of course, “Teh So So Intelligent” Obama probably thinks that Diana Ross is one of the former “Supreme” justices. Ha! 😉

Any thoughts on how this will go? Gut instincts, etc.? 😉

I know that the buzz has been Kagan recusing herself (not gonna happen, IMHO, not even if they find she LIED in her Senate confirmation hearing); about the level of appellate court decisions favoring the mandate as Constitutional (esp. the Reagan-apointee last week); and that Justice Kennedy is the “deciding vote.”

But that is all just hot air and scuttle butt. Do you have any insights or thoughts beyond the usual?

I am certain Mark Levin’s legal foundation, Liberty Legal, will write a brief, as they did in the Florida case, regarding the unconstitutionality of the individual mandate, the power grab using the “commerce clause” as a veil to steal our liberty, and the overall unconstitutionality of the “law.”

However, I would love to “hear” your thoughts, if you are willing to expound on them. 🙂

    Over the years, illogical court decisions regarding the commerce clause have done enormous damage to the original intent of the Constitution. The earliest decision I could find that moved this way was Jones & Laughlin Steel vs. NLRB in 1937. The logic, if I read it properly, is that the Feds can regulate anything that substantially affects interstate commerce because it affects interstate commerce. What? Circular, you say? That’s what I thought too, but I can’t see any other real reasoning. How did they jump from regulating interstate commerce to regulating anything that affects interstate commerce? I can’t see how that jump is authorized by the Constitution.

    If the Court finds that the Obamacare mandate is constitutional, they will have made the Constitution entirely meaningless. There will be no meaningful limits left on the power of the central government. This extreme centralization of power will lead to the downfall of our country. I’m not sure this danger will affect the Court’s decision, however.

      spartan in reply to JayDick. | November 14, 2011 at 12:26 pm

      The real problem begins with the Wickard v Filburn decision. I still posit it is one of the most wretched decisions that still haunt this country (yes-Roe, Plyler, NYTimes v Sullivan, Baker v Carr, McConnell are other poor decisions).
      The key will be how the conservatives on the court will vote. The Lopez and Raich cases are an interesting study. The conservatives had the opportunity to roll back Wickard and failed to do so. They will likely carve out an exception (see Lopez) and not undermine Wickard. The wild card in this matter will be John Roberts. He and Alito did not vote on Lopez and Raich but I recall reading at the time of his confirmation that Roberts would like the opportunity to roll back the Wickard decision. This is his chance to define his court.
      There is a school of thought that the conservatives on this Court are minimalists. This means they are quite hesitant to overturn precedent. I am quite sure Thomas and Alito do not have a problem with overturning precedent. The longer I observe the SCOTUS, the more impressed I become with Thomas.

        dhmosquito in reply to spartan. | November 14, 2011 at 1:00 pm

        Poor SCOTUS decisions: Don’t forget Kelo! Agree re: Wickard. A farmer can’t grow crops for his ***own*** consumption? Good God. Commerce Clause to the nth degree of overregulation. And they’ll probably do something equally as dumb next summer…

          JayDick in reply to dhmosquito. | November 14, 2011 at 1:35 pm

          Wickard was terrible, no doubt, a really extreme case of expanding the central government’s power with no real basis in law. But the way I see it, it only built on the principles expressed earlier in NLRB V. Jones and Laughlin. It was that case that broadened the Commerce clause to cover events that were not really interstate commerce. As near as I can tell, prior to the 1937 case, interstate commerce meant interstate commerce. That changed in the NLRB case so that interstate commerce means any commerce or, as in Wickard, even the lack of commerce. I hope that reasoning is not applied to Obamacare.

          I really don’t understand some of the legal logic the Supremes use. The founders were highly intelligent and articulate men. They had no trouble saying exactly what they meant very clearly. So, when they said the Congress can regulate interstate commerce, that’s exactly what they meant. If they had meant that Congress can regulate any event that affects interstate commerce, that’s what they would have said. So, why can’t the Supremes simply read what’s there and follow it? The only explanation I can find is that they really want to expand the power of the central government, but I don’t know why they would think that way.

          The same applies to the first amendment. It says “Congress shall make no law…..”. Why is that so hard to understand? If they had meant that no State legislature can make such a law, wouldn’t they have said that?

          Maybe it takes a law degree to understand all this, but it looks like BS to me.

          spartan in reply to dhmosquito. | November 14, 2011 at 2:44 pm

          re Kelo: Oops, I forgot.

          BTW, MS passed measure 31 which is anti-Kelo. IIRC, every measure and/or referendum which is anti-Kelo has passed. Property rights are very important.

    dhmosquito in reply to DINORightMarie. | November 14, 2011 at 12:10 pm

    Given my pessimistic nature, I suspect obamacare will be upheld. Obviously the best case would be for Judge Vinson’s ruling to be upheld, and his logic that the individual mandate cannot be severed leads to the whole damned mess being flushed. OTOH, an affirmation might increase voter turnout at an opportune moment wrt upcoming elections. I firmly believe that Kagan’s refusal to recuse borders on criminal.

      spartan in reply to dhmosquito. | November 14, 2011 at 12:35 pm

      You said– I firmly believe that Kagan’s refusal to recuse borders on criminal.

      If she misled (I think she did) the Senate with her testimony, I agree. She swore to tell the truth. The problem is Harry and his gang will defend Kagan and the milquetoast GOP will allow them to get away with it.
      The election of 2012 is not just the Presidency. It is also the Senate and keeping the House.

Dear God! 5 1/2 HOURS of Supreme Court oral arguments? The Justices are going to be hoarse by the time they’re done from talking over each other (except for Justice Thomas who actually READS the briefs like a Judge is supposed to).

Not a Chance that Kagan recuses herself. This is too important to the Obama Administration (even if losing) to get a 5-4 decision in order to try to “save face” and make the argument that “Obama needs 4 more years to remake the Supreme Court with Liberals who will do the ‘will of the people.'”

Power Play had a commentary this morning that a loss for Obama, while humiliating, would actually benefit him, because it would take some steam out of the Obamacare opponents and would let Obama go back to being all things to all people. They propose he would do this by saying to the Liberals “well, we tried it the moderates way, and the court said no, so now we’re going to try a single-payer plan in the next term” while simultaneously saying to the Moderates “well, we learned our lesson, we’re not going to rock the boat if you give us another term.”

The question then becomes: “will anyone believe it?”

[…] there.  For real opinion that matters, you’d probably best be reading the lawyers, such as Legal Insurrection and SCOTUS Blog. The allotment of 5 1/2 hours for oral argument appeared to be a modern record; the […]

Obamacare should be completely repealed through the legislative process irrespective of what the SC does.

    JayDick in reply to Ipso Facto. | November 14, 2011 at 11:42 am

    That would be good, but doing so may require 60 or more Republican Senators. That doesn’t seem likely in 2012. It would be quicker for the Court to overturn it in its entirety, holding the mandate to be not severable.

      RickCaird in reply to JayDick. | November 14, 2011 at 1:30 pm

      Jay, ObamaCare was passed under budget reconciliation, not as a standalone bill. Hence, there should be no reason it cannot be nullified under reconciliation and avoid the 60 vote requirement. Remember, Reid did not have the 60 votes so he had to use reconciliation.

        JayDick in reply to RickCaird. | November 14, 2011 at 1:43 pm

        The basic legislation was passed the normal way, with 60 Democratic Senators voting for it. Then Kennedy died and Scott Brown was elected. The Senate bill was different from the House-passed bill, so it had to go back to the House. Normally, a conference committee would be appointed at this point to resolve the differences, but the Dems couldn’t do that because the bill resulting from the conference would have had to pass the Senate. With Brown replacing Kennedy, that would not have been possible. So, the House passed the Senate-passed bill with no changes and Obama signed it.

        The part that was passed with a reconciliation bill was certain amendments to the previously passed bill that the House wanted. So, we still need 60 Senators to overcome a filibuster of a repeal bill.

          Kenshu Ani in reply to JayDick. | November 14, 2011 at 7:00 pm

          Will we need to overcome a filibuster? If the Democrats take a beating in 2012 but still have 40+ seats in the Senate, will they want to risk being booted out in the next election?

          I don’t have much faith in our current crop of politicians, but the one thing I do have faith in is that they are far more concerned with their own interest instead of ideology. Even now, the “moderate” Democrats are making sure to stay away from Obama when he comes to their town.

    Chicklet in reply to Ipso Facto. | November 14, 2011 at 7:40 pm

    YES! There is an incredible amount of this law already in place, our citizens will never be able to figure out which (few thousand) little pieces are in place because of the law or were the massive expansions of Medicaid some pre-existing condition? Many states have already set the wheels in motion to lower eligibility standards and allow millions onto Medicaid.

    Large insurance companies specializing in Medicare and Medicaid have already put programs into place to qualify for the massive amounts of federal money that is supposed to flow their way and we can be certain these guys will not be disappointed, SC decision or not. There is a danger that congress will ‘look the other way’ and let the hundreds of bureaucracies to begin operation (it’s too late to stop now!!) and Sebelius and the good Dr. Berwick (was he ever confirmed?) will testify into the night to convince us that these expansions will save money in 23 years. Our new congress must be told we want them to repeal as much as possible.

Regardless of how many hours the oral arguments last or what is said, it will come down to how Arthur Kennedy feels at th moment.

All the nonsensical claims to the effect that Thomas should recuse himself were made to se up a shield for Kagan. Supreme Ct justices are the sole judges of when and whether to recuse themselves and it was clear that Kagan was never going to do so.

Outside of tossing aside the Individual Mandate, I see Obamacare surviving Supreme Court review. There is no one in government who dislikes the idea of more control over the American people. They don’t exist.

Is there some way that Kagan can be excused from being involved with this case since she was personally involved with previously? It shouldn’t be left up to her to make this judgement. Would a suit be necessary?

[…] Linked at The Lonely ConservativeUpdate II: More at Hot Air, and now a Memorandum thread. Legal Insurrection notes:And, it does not look like Elena Kagan recused herself from consideration of the cert […]

Article 1 gives Congress the power to regulate interstate commerce. If I decide not to buy a product from an insurance company within my state, it is (a) not commerce (because I didn’t buy anything), and (b) it is not interstate. That there are lawyers who think otherwise just makes Shakespeare’s opinion on lawyers all the more understandable.

Redistributive and retributive change appeals to individuals who dream of physical and material instant gratification. The judgment to permit progressive involuntary exploitation through authority is a symptom of extraordinary corruption of authoritarian interests and individuals who hope to profit from their vote. When it happens through the democratic process it represents a tyranny of the majority.

It also serves to obfuscate underlying and causative problems.

Both fundamental corruption and corruption in the exception are sufficient to destabilize and collapse a society.

[…] come out a bloody boob. We’ve made that case before, others have made the case before, and today the Professor at Legal Insurrection makes the case again (we provide the emphasis): “From a purely political viewpoint, it is more important that the Supreme Court hear and […]

Would it be possible for Kagan to be impeached for lying to Congress about recusing herself?