Monday, November 14, 2011



The news has been expected for months but is of surpassing importance nonetheless. The U.S. Supreme Court announced this morning that it will take up the constitutionality of ObamaCare. The justices actually issued three writs of certiorari in ObamaCare cases, taking up four questions. Blogger Lyle Deniston has the rundown:

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 first of those four questions is the central one. In enacting ObamaCare, Congress claimed that the power to force individuals to purchase medical insurance from private companies is a legitimate exercise of its authority "to regulate Commerce . . . among the several States." The 11th Circuit Court of Appeals, in Florida v. Department of Health and Human Service, held that Congress had exceeded its authority. Other appellate courts have disagreed, making a Supreme Court review all but inevitable.


If the court holds that the coercive insurance provision is unconstitutional--an outcome that is by no means assured--then the severability question will determine the fate of the rest of the law. As we explained Feb. 1, the trial judge in the Florida case held that it was not severable, which is to say that it is so essential to ObamaCare's legal scheme that if it falls, the entire law has to.

The 11th Circuit struck down that aspect of his ruling, and no other appellate court has held the provision to be inseverable. Yet both parties to the case now take the position that the provision is not severable. The state plaintiffs, like most Americans, would like to be done with the whole monstrosity that is ObamaCare, whereas the administration presumably thinks inseverability would raise the stakes and make the court shy about striking down the law. The justices are entirely free, however, to hold that both sides are wrong and the 11th Circuit was right.

Whatever the court does, it will be one of its most important rulings in many decades. In the 1930s, the justices effectively rewrote the Constitution, reinterpreting the Commerce Clause as an almost unlimited license for Congress to expand the regulatory state. Not until the 1990s and 2000s did the court set any limit at all to that power, in a pair of very narrow cases in which the laws in question lacked any plausible connection to "commerce."

Because the question they raise is novel, the ObamaCare cases will not turn back the tide of New Deal jurisprudence. But if the court strikes down the forced insurance provision, it will finally, after more than 70 years, stop its advance. On the other hand, if the court upholds ObamaCare, it will mark yet another expansion of federal power.

Although the justices will not acknowledge it in their opinions, today's court operates in a very different political environment than did their New Deal-ear predecessors. Back then, the country was in crisis and an expanded federal government seemed to be the solution. New Deal programs were popular and enjoyed bipartisan support in Congress (not that they needed it, so dominant were the Democrats in those days).

Today America is also in crisis, but this time an enormous, sclerotic government is a cause rather than a solution. ObamaCare was enacted with only Democratic votes, it had and continues to have little popular support, and voters have repeatedly expressed opposition to it, by electing Republicans to Congress and passing state initiatives against it.

How will the case turn out? We boldly predict that the result will be somewhere between a 5-4 ruling striking down the insurance mandate and an 8-1 ruling upholding it. All four Democrat-appointed justices are almost certain to vote to uphold, and Justice Clarence Thomas--who in dissents and concurrences over the years has argued for reconsidering much of the New Deal's constitutional legacy--is an almost certain vote against.

Justices Antonin Scalia and Anthony Kennedy have a mixed record on Commerce Clause cases, and Chief Justice John Roberts and Justice Samuel Alito have not yet heard such a case since joining the high court. So their votes are in at least some doubt.

The Washington Examiner's Philip Klein praises the lawyers who will argue the case against ObamaCare:
Former solicitor general Paul Clement and Michael Carvin of Jones Day (who also has lots of experience before the Supreme Court) did a masterful job arguing the case before the 11th circuit. Georgetown Law Professor and constitutional law whiz Randy Barnett is also an advisor to the NFIB on the suit. . . . Opponents of the law should be heartened that they'll at least have their A-team handling the case.

Barnett outlined the legal case against ObamaCare in our July 2010 Weekend Interview with him. At that time, the liberal left was just coming to realize that there is a serious constitutional case against ObamaCare; the conventional wisdom had been that it was frivolous.

Denniston notes that the 5½ hours the court has allotted to oral arguments "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." (That case, McConnell v. Federal Elections Commission , yielded no fewer than eight separate opinions.)

"The length of time specified for the health care review was an indication both of the complexity of the issues involved, and the importance they hold for the constitutional division of power between national and state governments," Denniston observes. At the very least, the justices have made fools of all who thought the constitutionality of ObamaCare was a slam-dunk.

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