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Obamacare SCOTUS-bound?

The government surprised some people by not trying delay Supreme Court consideration of the Eleventh Circuit decision holding PPACA partially unconstitutional, but I think Todd Gaziano has it right: the government couldn't expect a better result from the Eleventh Circuit, and, with the 2012 election up in the air, the administration may well have preferred to have its own solicitor general arguing the case than risk the sort of shenanigans created by this administration's politicized decision to sabotage the defense of DOMA in pending constitutional litigation. Cert petitions: NFIB; DOJ; Thomas More; DOJ response to Thomas More; Florida and other states.

To this, we can add the cynical Mickey Kaus analysis: the administration may well prefer to have Obamacare struck down before the 2012 election. Not only does an adverse decision diffuse one of the strongest sources of anger against Obama, as Kaus notes, but any reversal would be 5-4, and permit Obama to run against the Supreme Court the way he attempted to do in 2010 over Citizens United. And the more likely scenario of a Supreme Court win would likely have a politically mollifying effect on independent voters who are generally indifferent about Commerce Clause issues; voter ignorance about the role of the Supreme Court (combined with the media's general laziness in reporting Supreme Court jurisprudence as a political decision) would result in the majority of voters treating the Supreme Court decision as a ratification of the underlying PPACA policy decisions, making it an unprofitable issue for Republicans in the election. (Which may well already be true if Romney is the Republican nominee, given that Romneycare inoculates Obamacare from criticism.

Meanwhile, the DC Circuit heard argument on PPACA on the 23rd; the DC Circuit can't resolve the circuit split, so its decision will be little more than amicus briefs by the various opinion-writing judges, and it got little press coverage. But for some interesting examples of eye-of-the-beholder observation, compare the liberal Simon Lazarus to the libertarian Randy Barnett covering the same argument.

The D.C. Circuit argument presents two questions that neither side has adequately answered. First, how can the claim PPACA is unconstitutional be reconciled with Wickard v. Filburn, the Supreme Court case exemplifying the high-water mark of Commerce Clause jurisprudence? Randy Barnett certainly has a creative theory, but the better answer may well be Richard Epstein's: Wickard is wrong. But given that Gonzales v. Raich was 6-3, I don't see five (or even four) votes for reversing Wickard. But the government may just be able to pull defeat from the jaws of victory, because, when asked to define a limiting principle for the Commerce Clause, the government has steadfastly refused to do so (much as Justice Kagan refused at her confirmation hearing). While there are likely four votes on the Court for unlimited congressional Commerce Clause powers, the government needs a stronger argument to guarantee a fifth vote.

That said, I count the four Democratic noses to uphold PPACA against any challenges, only two votes (Thomas's and Roberts's) that are very likely to vote against doing so, and three votes—Scalia's, Alito's, and Kennedy's—whose view of the Commerce Clause question that Randy Barnett presents will be completely unknown. Add to that the possibility that you could find five votes to punt the question entirely by holding early challenges barred by the Anti-Injunction Act (imagine how that decision will be covered by the news media), and it seems the odds are against this Supreme Court striking down PPACA in 2012.

I discussed these issues with Vicki McKenna on WIBA on September 27.

More: Ilya Shapiro.

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.