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ObamaCare Is Likely To Die a Painful Death

Is the Supreme Court likely to draw and quarter the president's signature legislation? You betcha.

by
Dan Miller

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October 8, 2011 - 12:00 am
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On September 28th, the Obama administration filed a petition for certiorari with the Supreme Court seeking review of the ObamaCare decision rendered by the Eleventh Circuit on August 11th. That decision held the mandatory insurance provisions of the statute unconstitutional while allowing the rest to stand. As noted in a ScotusBlog article,

Seeking en banc review in the Eleventh Circuit would have made sense only if the government was going to press the Supreme Court to defer reviewing the constitutional question until next Term (including by denying review of the pending Sixth Circuit case).  So, the United States would have been making a choice to delay a final answer – because Supreme Court review is inevitable – for a year.  I expect that the agencies involved strongly resisted that delay, and the Solicitor General decided that the upside of potentially getting the panel opinion reversed was not actually that great, because any victory could itself be temporary.

The author of the ScotusBlog article also observes,

Different factors almost certainly had different weight for the various government lawyers involved.  But I think there is a simpler and more straightforward answer.  In situations like these, politics is never completely absent.  But the government tends to act in its institutional interests first, and the interest of a particular Presidential Administration second. (emphasis added)

Really? During the current administration?

Petitions have also been filed by those opposing ObamaCare, and apparently all hope that the Court will render a decision well in advance of the November 2012 elections. The Court seems likely to do so.

There appear to be four possible Supreme Court results:

1. Reject the insurance mandate but leave the balance of ObamaCare standing.

2. Uphold ObamaCare.

3. Reject ObamaCare completely,

4. Release no decision until after the election.

I have attempted to rank these possibilities from most to least likely, not based on any attempt to read the minds of the justices but on what lower courts have done, my understanding of ObamaCare, and perceptions of the present state of the law. Numbers two and three seem to be nearly tied, although number two may have a remotely better chance. All but number four — which might leave them unchanged — would add to President Obama’s reelection problems. For the Supreme Court to agree with the Eleventh Circuit that the mandate is unconstitutional and to allow the rest of the law to remain standing would be the worst possible outcome for for President Obama. That is what all judges who have found the individual mandate unconstitutional have done, with one exception.

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