Obamacare’s Next Step: Supreme Court

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The next stop for Obamacare will likely be the Supreme Court, where review and a decision on the law’s constitutionality could occur smack in the middle of the 2012 presidential campaign. The Obama administration smoothed the way to the Supreme Court by letting a crucial procedural deadline pass for seeking a rehearing by the entire 11th Circuit Court of Appeals of its three judge panel ruling striking down the Obamacare individual mandate.

Unless Attorney General Eric Holder and his highly politicized Department of Justice had a case of collective amnesia and let the deadline slip by inadvertently, one has to assume it was a calculated move by the Obama administration to embroil the Supreme Court in a hot-potato issue during the 2012 presidential campaign.

Three U.S. appeals courts have weighed in so far on Obamacare. The 11th Circuit Court panel found that the requirement imposed on individuals to purchase health insurance from a private company for the entire duration of their lives is an unconstitutional overreach of Congress’ enumerated legislative powers, including under the Commerce Clause, which “is unprecedented, lacks cognizable limits, and imperils our federalist structure.” The 6th Circuit Court of Appeals upheld the individual mandate as “a valid exercise of legislative power by Congress under the Commerce Clause.” The 4th Circuit punted, saying that it was too early to address the issue on its merits since the mandate does not come into effect until at least 2014.

Splits among appeals courts on an issue of such constitutional significance normally impel the Supreme Court to take up the matter to bring judicial finality to the legal side of the controversy. The only question had been when the constitutional issue would finally reach the Supreme Court for decision, since the court had already declined a request for accelerated consideration that would have by-passed the appeals courts altogether. Now that the government is effectively accepting the 11th Circuit Court of Appeals’ three-judge panel decision as the last word from that court in upholding the constitutional challenge brought by more than half of the states, the Supreme Court is more likely to take up the case during its 2011-12 term, which begins Monday. If the Court decides to hear arguments sometime this fall or winter, it could issue an opinion by June of 2012 as the presidential campaign season gets into full swing.

If the Obama administration had wanted to delay the case from reaching the Supreme Court until after the 2012 election, it could have filed the petition for an en banc re-hearing by the full 11th Circuit Court, which conceivably could have reversed the three judge panel if it decided to re-hear the case. True, such a reversal would have been unlikely since there is a minority of five judges appointed by Democrats on the 11-judge Circuit Court, and one of them has already ruled against the constitutionality of the individual mandate. Nevertheless, just making the request would have led to months of filings, which would have pushed the timing of any Supreme Court decision beyond the 2012 presidential election.

One might think that such delay would be in the Obama administration’s political interests. After all, Obamacare remains unpopular. News coverage during the presidential campaign on whether it is or is not constitutional will remind voters of one of the main reasons they have misgivings about Barack Obama. The administration also hopes that, if Obama is re-elected, the current 5-4 conservative majority on the Supreme Court will disappear with the departure of just one of the conservative justices during the ensuing four years, which will make it easier to prevail against the constitutional challenges to Obamacare.

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  • Majestic_One

    I'm tired of the judicial abuse of the commerce clause. The court never abuses it with foreign nations but only with states. Lets cut the BS and have a moment of commerce clause truth here:


  • angel

    State nullification is the only way to stop this dictator.

  • maturin20

    Here's hoping that Court dumps this worthless legislation.

  • Chezwick_mac

    Once again, Anthony Kennedy will decide the fate of the country.

    • StephenD

      THIS…is not comforting.

      • Chezwick_mac

        I hear you amigo….another reason why 2012 is so important.

  • aharris

    Maybe Europe will be busy crumbling. It might be hard to uphold European law as good when it's brought Europe crashing down.


    So, the article tells us that if the Court approves, Obama will claim victory; if the Court disapproves, Obama will use class warfare. And neither strategy may work. What a brilliant insightful article.

  • Reason_For_Life

    If Obama wants to take it to the Supreme Court then he already knows the outcome which means that he knows how Kennedy will vote. ObamaCare will be declared constitutional.

    This is a serious loss for liberty.

    Now, our only hope is the congress and so far they have been worthless.

  • tanstaafl

    Things sure have changed since I went to school. Back then, the Commerce Clause simply gave Congress the ability to ensure that trade between the states was free of tariffs and barriers. What happened? Only Congress knows for sure.

    Funny, I seem to remember that everyone back then new what "natural-born" citizen meant.

    • intrcptr2

      Problem is, there are two reasons you're remembering wrong.
      The first has to do with auto insurance. The only difference here is that driving has been defined as a "privilege" as opposed to a right. Thus, government has the authority to tell us what we may do concering our conveyances; ie, DUI checkpoints, police searches, mandatory driver insurance.
      The second is that the Supreme Court extended the commerce clause all the way down to the individual during the New Deal. I've forgotten (And haven't the time just now to Google) the exact cases, but the Federal goverment had set certain argicultural quotas in an effor to stabilize the market. When certain farmers planted small vegetable gardens alongside their cash crops, the Court stated that the farmers were in violation of Federal Law in that by removing themselves from the market as consumers for those vegetables, they were ruining the quota system which Congress had erected under their valid exercise of commerceclaus power.

      The Civil Rights battle was also fought on this front. I am pessimistic enough to think that the Court has more than enough case law to support the Government's argument.

      It is patently as illiberal as anything I've ever seen; Adams and Jefferson both are rolling in their graves over this, and they are likely wondering just how it is we've failed. Sadly, I expect an appeal to "universal principles" would not succeed.

      • tanstaafl

        You don't have to buy auto insurance in the state I reside. I recognize that FDR started the process, but he didn't laugh at the constitution like the former Speaker of the House.

        And no one would allow the FEC to overrule the Constitution's requirement's for eligibility to serve as POTUS.

        • intrcptr2

          Oh, I'm aware that some states do not require auto insurance. But the SCoUS has placed automobiles outside of Constitutional protections, those that I mentioned are simply the ones that sprang to mind.

          As for the comparison between FDR and her 'highness", I'm not certain how I would give less credit to either one. I can't consider her laughter in this vein, simply because I don't know how much of the Constitution she is consciously aware of; can a person sneer at something they are ignorant the existence of?
          FDR's court packing scheme alone earns my eternal scorn.

  • mlcblog

    worse than worthless….damaging

    • maturin20

      Yes, indeed.