Why The Supreme Court Will (Probably) Overturn Obamacare


With the 11th Circuit having just ruled that the individual mandate in The Affordable Care Act is unconstitutional, it is inevitable that the case will be ultimately decided by the Supreme Court.

Republicans hailed the 2-1 decision against the individual mandate as a ruling against an overreach by the federal government. Congressional Republicans have praised the ruling, with Minority Leader Mitch McConnell saying it is a decision against “an unprecedented, unwelcome and unconstitutional expansion of powers in the federal government.”

An Obama aide in a statement said she expected the law to ultimately stand the test of constitutionality. Health care aide Stephanie Cutters said in her response that health care can be regulated because it is a service everyone requires at some point, and therefore the Commerce Clause gives the federal government the authority to enact legislation with an individual mandate.

The Supreme Court will be deciding the issue sometime around the summer of 2012. It will be interesting to see their decision, but in the meantime, there are clues we can read into to guess their verdict. And those clues would seem to give opponents hope.

First, some math. With nine justices on the bench, five will be needed to overturn the law. The most obvious candidates for a nay ruling are the known conservative Justices Roberts, Alito, Scalia and Thomas.

I doubt any legal analyst would dispute the idea that these four are overwhelmingly likely to rule the law unconstitutional. These are men appointed by Republican Presidents. They’re all conservative. And while political views and loyalties theoretically should have no impact on judicial decisions, the sad truth of the day is that Supreme Court Justices are politicians in robes.

We can safely say that Justices Sotomayor, Kagan, Breyer and Ginsburg will rule the law constitutional. Sotomayor and Kagan are justices appointed by Obama, and they have dependably expressed liberal views in their brief tenures on the Court. Breyer is a Clinton-appointed Justice who has frequently supported a strong Federalist view over states’ rights in the past, and Ginsburg is the most liberal justice on the Court by most measures.

That leaves one Justice, who will likely decide the fate of Obamacare: the perennial swing vote, Anthony Kennedy.

It’s genuinely hard to predict how he will vote. But there is one tea leaf that should hearted conservatives.

The Supreme Court recently voted unanimously to uphold a challenge to federal authority in the case Bond v. United States. The case was about a jealous wife who put poison on doorknob of her husband’s lover. When she was tried for breaking federal law implementing the Chemical Weapons Convention, her lawyers argued that that law exceeded Congress’ authority, and should be considered null. The appellate courts ruled that because the state had filed no complaint, the law couldn’t be overturned on grounds of federalist restraint. The Supreme Court disagreed, ruling that every citizen has the right to challenge federal laws.

                This ruling is no real help to Carol Bond, who broke plenty of state as well as federal laws. But the Supreme Court’s stance on states’ rights that was revealed by the ruling should be helpful to opponents of the health care law. The pivotal Justice Anthony Kennedy wrote the majority opinion, saying, “Fidelity to the principles of federalism is not for the states alone to vindicate.”

                The decision is a vindication of the idea of states’ rights, and the view expressed by Kennedy seems to be at odds with the views of health care reform advocates, who argue that the federal government should have the power to impose requirements to buy health care insurance for citizens in all fifty states.

                As the controversial law rolls onwards to meet its fate at the Supreme Court, all eyes will be on Anthony Kennedy. It looks as though the stars might just be aligned for the judicial rebuke of the century.

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Comments 15 comments

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HSchneider 5 years ago from Parsippany, New Jersey

I suspect that you may be right Mark. I do hope that Justice Kennedy will see it differently this time. I agree that he will be the key swing vote. Great analysis.

FitnezzJim profile image

FitnezzJim 5 years ago from Fredericksburg, Virginia

While I agree with the result indicated, I was saddened that the analysis is based on judges maintaining allegiance to the party that appointed them. That is a sign that we are beginning to extend the idea of 'party rules' to the the idea of 'party justice'. That sort of governance and justice (mob control) will drive us to failure.

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Mark Sparks 5 years ago from Charlottesville, Virginia Author

@HSchneider-yeah, I really don't know how it will go, but gun to my head I'd say the Court that brought us Citizens United will rule against the individual mandate

@ FitnezzJim: It is depressing, but there are a lot of studies showing that justices tend to promote the views of the party that nominated them. It's a reality that's reflected in the fact that Senators like to grill nominees on their political views, rather than just their understanding of the Constitution. Maybe it is unavoidable, though it is uunhealthy

feenix profile image

feenix 5 years ago

Hello, Mark Sparks,

This is a very good analysis of what may or may not happen with the Obamacare question once it reaches the U.S. Supreme Court.

In fact, you provided me with some new insights into the issue and how it should be viewed and handled by the courts.

Mark Sparks profile image

Mark Sparks 5 years ago from Charlottesville, Virginia Author

glad you liked it, feenix. I've always been interested by the Supreme Court, maybe because I'll probably go into law.

feenix profile image

feenix 5 years ago

Well, if you do go into law, you are going to be an excellent attorney, or clerk for one of the conservative justices of the U.S. Supreme Court. That is quite obvious, because the high quality of your posts shows that you will have the the ability to write some outstanding briefs.

wba108@yahoo.com profile image

wba108@yahoo.com 5 years ago from upstate, NY

MS- Excellent insights on this beautifully written Hub! I think your right and Kennedy will be the deciding vote that strikes down the individual mandate. Its encouraging to see some sanity still remains in our judicial system. Perhaps this new interest in states rights will will reign in our out of control federal government and bring decision making power back to the states and local governments where it belongs! Thanx again for your valuable insights!- WBA

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Mark Sparks 5 years ago from Charlottesville, Virginia Author

thanks for the read, wba! Some exciting updates on the case-the administration instructed the department of justice to send the law to the Court before the 2012 election. Anything could happen from outright repeal to the complete upholding, I'll be sure to write more.

Martinez87 5 years ago

Very well written in a non bias voice. You list the facts and let the reader form their own opinion. You should be a journalist. Considering Journalism is dead in this country, I think you could help revive it!

My Esoteric profile image

My Esoteric 4 years ago from Keystone Heights, FL

I will join the chorus and say this was a great hub, although I am not entirely convinced it is 100%, or even 90%, unbiased. Great analysis, nevertheless.

The Court has heard the arguments now and two surprises have come out of it. Chief Justice Roberts is not a slam dunk "Nay" vote, it seems, and Justice Kennedy is troubled both for and against Obamacare, although I suspect is bias in toward a "Nay" vote.

I linked this hub to one I just wrote on what might happen if Obamacare fails the muster.

Mark Sparks profile image

Mark Sparks 4 years ago from Charlottesville, Virginia Author

Thanks for the read! I'll have to follow up with another post on the hearings, and I'll be sure to check your hub out.

la Pija 4 years ago

Obama Care is not going to be over turned. Mark my words mark you useless sheep.

My Esoteric profile image

My Esoteric 4 years ago from Keystone Heights, FL

It seems liberals can be just as stupidly insultive as conservatives, doesn't it? To me, when I see those last three words, it makes anything that comes before them useless tripe.

Mark Sparks profile image

Mark Sparks 4 years ago from Charlottesville, Virginia Author

Well, la Pija, we shall see who is right in just a few days! I've taken a class in constitutional law since writing this hub, and it has changed the way I see things slightly. Now I think that the most likely scenario is the law is upheld, with some provisions chucked out. But who can say for sure?

Johnd172 2 years ago

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