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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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    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.

    eaglewingz08 | September 29, 2011 at 2:45 pm

    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.

    valleyforge | September 30, 2011 at 1:07 am

    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.

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