Obamacare’s Next Step: Supreme Court

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That said, the Obama administration still may see Obamacare as a useful part of its class warfare campaign. The narrative of  a conservative Supreme Court potentially striking down a social justice public policy initiative passed by Congress to presumably help millions of Americans obtain affordable health insurance fits into this narrative. It is one means of galvanizing the campaign’s political base on the Left, which supports Obamacare. If the Supreme Court does decide to strike down Obamacare, in whole or in part, the administration will make replacing the “regressive, out-of-touch” conservative court majority a campaign issue.

On the other hand, if the Supreme Court upholds Obamacare, with Justice Anthony Kennedy voting in favor as the deciding swing vote, the Obama campaign will do a victory lap. It may well be counting on swaying Justice Kennedy, who believes in using international law as a reference point for interpreting the U.S. Constitution.  An argument they may use to sway Justice Kennedy is that Congress’ policy determination to expand affordable health care brings the United States closer to other developed countries’ recognition of the human rights dimension of universal health care. During her Senate confirmation hearings to become U.S. Solicitor General, Elena Kagan (now a justice on the Supreme Court herself) laid out this precise strategy regarding the use of foreign law to persuade wavering justices: “At least some members of the Court find foreign law relevant in at least some contexts. When this is the case, I think the Solicitor General’s office should offer reasonable foreign law arguments to attract these Justices’ support for the positions that the office is taking.”

However, if the Obama administration is trying to turn Obamacare into a political wedge issue, its strategy may well backfire. It could have the counter-effect of further galvanizing the Republican base if Obamacare is ruled constitutional. Even if the Supreme Court simply hears oral arguments, but delays a decision until after the election, the Obama administration’s well-publicized defense of the law will be seen by Obamacare’s opponents as rubbing salt in the wound.

The Obama campaign may believe its vigorous defense of Obamacare will appeal to its own base, which Obama is trying to energize any way he can. However, while throwing red meat to the base on the Left would be a good strategy for primaries, if Obama were facing a serious challenge from the Left, it is not a wise course for the Obama administration to follow during the general election campaign. The independents Obama needs to reach are on the other side of the issue. A recent Rasmussen poll of likely independent voters, reported on September 19, 2011, shows that, by a margin of 53 to 32 percent, independents support the repeal of Obamacare. Overall, 56% of likely U.S. voters want Obamacare repealed.

Americans see their insurance premiums going up and the costs to the government of implementing Obamacare ballooning. Patients and their doctors are unhappy with the burdens imposed on the patient-doctor relationship by government meddling, which is symptomatic of the dissatisfaction that a record-high 81% of Americans have with the way the country is being governed, according to the most recent Gallup poll. Forty-nine percent of Americans believe the federal government has become so large and powerful that it poses an immediate threat to the rights and freedoms of ordinary citizens.

In short, if the Obama administration intends to inject the Supreme Court into the debate over Obamacare next year and to politicize any Supreme Court decision finding Obamacare unconstitutional, its political calculations may turn out to be as ill-advised as its policy prescriptions.

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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.