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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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    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?

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