Obamacare endgame: DOJ appeals mandate to SCOTUS

Rick Moran

The Obama administration has appealed the constitutionality of the individual mandate in Obamacare directly to the Supreme Court. In a countermove, 26 states and the National Federation of Independent Businessesappealed to SCOTUS to strike down the entire law.

If the Supremes accept the appeals - not a certainty at this point - a decision on Obamacare would come before June of next year.

Reuters:

The case is likely to be heard and decided in the Supreme Court's upcoming term that begins next week and lasts through June 2012. A ruling is likely in the midst of the campaign for the November 2012 elections.

The administration and the opponents of the law called for a quick ruling by the high court to resolve uncertainty affecting the federal government, states and companies about the law's key provisions that are taking effect.

The 26 states and National Federation of Independent Business argued in their appeals the entire law should be invalidated because Congress exceeded its powers requiring that Americans buy health insurance or face a penalty.

The Obama administration filed its own appeal in which the Justice Department argued the so-called individual mandate, due to take effect in 2014, was constitutional and said the issue was appropriate for Supreme Court review.

Reading the high court is like trying to read what a cat is thinking; it's an interesting game but not very productive. There are probably 5 or 6 votes that are certain which means there are 3 or 4 votes that could go either way.

Throw out past decisions made by most of the justices. They read the newspapers. They also read the polls. They know the law is controversial - something that makes them uncomfortable. They would probably prefer that the lower courts shield them from the hurricane that is headed their way. That's why there's a chance they will refuse to hear the case and send it back to the lower courts for clarification.

In Bob Woodward and Scott Armstrong's book "The Brethren," the authors showed how public opinion often infuenced the court, that the justices were never eager to get out in front of the public on controversial cases. That's about the only chance I see of the mandate being declared unconstitutional. Most court observers who know a helluva lot more about the court than I do think its a foregone conclusion that Obamacare will pass the test. Their argument mostly deals with the reluctance of the Supremes to overturn a law passed by congress in exercising their enumerated powers.

But, as other observers have noted, the mandate regulates "economic inactivity" - a subtle but significant difference from past uses of the commerce clause to extend federal power. The problem is it may be too subtle and not a game changer.

Lastly, there is a chance that the Supremes will strike down parts of the law and leave other parts alone. It won't matter as long as the mandate survives. Conversely, if the mandate is struck down, the rest of Obamacare is an empty shell and the chances of repeal go up dramatically.

In the midst of an economic crisis with real catastrophe over the horizon in Europe staring us in the face, the Supreme Court will once again be the arbiter of American freedom. It should go without saying that any chance Obama has for reelection hangs on the decision.