What to Watch For When Supreme Court Hears Obamacare Arguments

On March 26th, the Supreme Court will begin hearing three days of oral arguments on the constitutionality of Obamacare.  Some legal experts are calling the decision the Roe v. Wade of our generation, and that’s probably not an exaggeration.

The primary question before the Court is whether the commerce clause in Article I of the Constitution authorizes Congress to mandate that individuals purchase health insurance.  This boils down to how the court defines “economic activity.”

The Justices must decide whether an individual’s decision to forgo health insurance becomes economic activity by virtue of the fact that at some point in their lives they must participate in the healthcare market.  The slippery slope potential of that reasoning should be obvious: just about anything Americans choose to purchase or not purchase has some broader economic consequence.

Former Bush Solicitor General Paul Clement, advocate for the 26-state coalition challenging the law, can be expected to focus extensively on this lack of a “limiting principal.”  If Congress can regulate Americans who intentionally chose not to engage in commerce, then Congress’ power is essentially without limit.  Thus, the Court’s ultimate opinion has the potential to either make or break the idea that the Constitution restricts Congress’ authority to limited enumerated powers.

The big question for legal observers is whether Chief Justice John Roberts, Justice Anton Scalia, Justice Samuel Alito and Justice Anthony Kennedy will reveal their leanings during the arguments.  Count on the questions and demeanor of these Justices to be closely scrutinized for any hints as to their ultimate decision.

The Obama administration only needs to convince one of the four Justices mentioned above to win the case, as the four liberal Justices are almost certain to uphold the law.

Despite the usual critique of Justices as strict political partisans, there’s no guarantee that all of the “conservatives” on the Court will strike down Obamacare’s individual mandate.

Both Roberts and Scalia have written prior opinions that hint that they could be convinced of the mandate’s constitutionality.  In fact, The Hill reported last week that the Department of Justice is shifting its legal arguments in the case to arguments that Justice Scalia has previously endorsed.  Roberts is also on record supporting the view that Congress has some powers that are not specifically delegated by the Constitution.

Alito’s views on the relevant issues in the case are anyone’s guess.

Justice Kennedy, the Court’s usual swing vote, is probably the most likely to side with the liberal wing.  Constitutional scholar Erwin Chemerinsky joked to The Washington Post that he would “put Justice Kennedy’s photo on the cover” of the Court briefs if the rules allowed it.

If the court overturns the individual mandate, it would be a major repudiation of the liberal theory of governance which assumes that Congress should be given virtually unlimited discretion in addressing economic problems.  On the other hand, if the individual mandate is upheld, the Court’s conservative revolution is more or less dead.  The stakes couldn’t be higher.

Comments

Comments

  1. [...] of the unpopular law. Democrats are eager to shift the public’s opinion of the law before the Supreme Court hears testimony next week on the constitutionality of the law, which Republicans argue (and at least one Congressional Democrat admits) went outside the [...]

  2. Dboy says:

    Sarah Palin caused all that? This from a woman that the lfitest news media and politicians have repeatedly declared inept? Think what she could have done if she were ept . I believe the reason that people fear a possible death panel is the government’s habit of letting programs morph into something other than their original intent.SSI was intended to be insurance for the truly poor so that they would have at least something in their old age. Now it’s a retirement program for everyone.Medicare was to be safety net for the truly indigent, now it’s an entitlement program that includes capable people that can’t be bothered with using their tattoo and piercing money for their babies food.Obamacare is full of vague regulations that can be just as easily modified.

Polititainment

Brazile says she brings 'realism' to TV
Democratic National Committee Vice Chairwoman Donna Brazile is a real life actor who brings “realism” to your living room and she wants you to know it. The New York Times published a letter by Brazile Wednesday that was apparently in response to a NYT critic who dinged Valerie Jarrett’s recent appearance on “The Good Wife.” The […]
Stewart: How a bill becomes an ad

Jon Stewart observed Tuesday night that, although Congress doesn’t pass many laws these days, all those bills don’t go to waste—instead they are reborn into campaign ads slamming opponents for not voting on something.

Stewart wants to move 'home' to England

Jon Stewart is having second thoughts about the whole “American independence from Britain” thing.

Colbert: Obama is stealing Bush's lines

Colbert observed Monday night that some of Obama's recent comments on ISIS and Iraq seem a little familiar.

Liberal lobbying firm makes ‘Bibi-Yoncé’

If you’ve ever thought that the complexities of the Israeli-Palestinian conflict reminded you a lot of a Beyoncé song, liberal Middle East lobbying group J Street has the internet campaign for you!

White House

Holder resigns with 26 percent approval rating, making him third least popular Obama cabinet member

Attorney General Eric Holder’s dismal 26 percent approval rating as he steps down from his duties still leaves him as only the third least popular Obama administration official to resign.

Barack Obama doesn’t celebrate National Coffee Day. He celebrates tee time.

Look. We get it. The president gave his coffee salute, The Semper Latte, just days ago, recent enough to use for National Coffee Day jokes from dusk 'til decaf. But aren't we missing an opportunity here?

U.S. Grants $450M to Community Colleges To Link Job Training To Employers
WASHINGTON (AP) — Vice President Joe Biden announced almost a half-billion dollars of grants Monday to community colleges working with employers on job training. Linking training to industry demand is key to the Obama administration’s strategy for improving wages and reducing unemployment. Massasoit Community College in Massachusetts and Wisconsin’s Chippewa Valley Technical College received the […]
WH: Secret Service’s ‘task is incredible’
THE HILL – The White House said Sunday it remained confident in the Secret Service despite news that the agency didn’t realize for five days that bullets had hit the White House in a 2011 shooting incident. “I know the Secret Service is on top of this and they will take every necessary step to correct […]
Even hardcore left states don’t believe Obama is doing a good job
President Obama is facing more bad approval ratings, but this time they are coming from states that used to be his biggest fans. Just 39 percent of registered voters in New York responded to a new Marist College poll that they believed Obama was doing an “excellent” or “good” job. This is the lowest level […]

Congress

Lawmakers react to Secret Service resignation

Secret Service Director Julia Pierson tendered her resignation Wednesday in the wake of news of multiple security breaches and testimony before Congress this week.

John Boehner: Obamacare 'has to go'

In an interview with USA TODAY Tuesday, House Speaker John Boehner affirmed that Obama's championed but disastrous Affordable Care Act "has to go."

McCain: Rand Paul 'trusts me' in military matters

McCain thinks he would wield a great deal of influence over a potential President Paul, “particularly on the military side of things.”

Rep introduces bill to ban porn on gov. computers
Most people wouldn’t think to browse porn at work, but then again, most people aren’t federal employees. Earlier this year it was discovered that one EPA official had been browsing pornography for two to six hours a day while at work and now Rep. Mark Meadows, (R-N.C.) has introduced a bill explicitly “prohibit[ing] the access […]
DWS repeated 'back of his hand' line
Apparently when Democratic National Committee Chairwoman Debbie Wasserman Schultz finds a phrase she likes she is going to repeat it, no matter how offensive. For the second time within the past month, footage of the DNC chairwoman has surfaced in which she accused a Republican governor of giving women “the back of his hand.” Republican Super […]