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Let the Courts Decide?

November 14, 2011

The Supreme Court docket for the next season is coming out, and one of the first news items everyone started talking about was healthcare.  Hot Air picked up the news this AM (which I heard on the TV while riding the bike… hey, I need to exercise) that the Supremes have decided to indeed take the case.  The assumption is that they will consider the Florida case, since that one had the broadest ruling, but there’s no definitive data on that yet.  Ed Morrissey notes the high-level outcomes:

The timing is highly consequential.  It means that Obama almost certainly won’t get a chance to name a new court member before the Supremes decide whether the Commerce Clause is an opening through which Congress can force any kind of regulation and mandate.  If they end up supporting ObamaCare, Barack Obama will claim vindication for the next few months of the campaign for his re-election bid.  If they strike it down, Obama loses his signature achievement and has to explain that for the next few months leading up to the election — and explaining is not winning.

I believe there are a lot of people on the conservative side who believe that this is a slam-dunk for repeal via the courts.  I’m not so sure about that, since a couple of the more conservative judges also seem to defer to the decisions of congress so as not to — gasp — legislate from the bench.  This could go 5-4 or 6-3 in favor.

One of the paths that could result in a real court case dilemma would be longer, but likely more to the conservative side.  Some states are already taking up state-wide votes on the individual mandate.  Insurance, like it or not, can’t cross state boundaries, and that alone enables some states to put it to their voters on whether to enact state-wide healthcare or not.  A court case where a state goes against the feds is likely more of a case where there is compelling legal argument.

All this is moot, of course, since we’re going to hear what’s already there.  For real opinion that matters, you’d probably best be reading the lawyers, such as Legal Insurrection and SCOTUS Blog.

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.   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.

I don’t believe this is the last time the court will take up health care, but it will be enlightening to see where the conservatives side in the kick-off.  Either way, we have healthcare in the news again before the election cycle.  And that likely means a re-invigoration of the Tea Party side, which calmed down a bit in this last cycle.  So as much as the Left side is saying that the Tea Party is dead and OWS is the new black dress… let’s see who rallys the vote next November.

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