Obamacare Heads to the Supreme Court

Obamacare Heads to the Supreme Court
September 28, 2011

Benjamin Domenech

Benjamin Domenech (bdomenech@heartland.org) is a senior fellow at The Heartland Institute. Domenech... (read full bio)
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At long last, the case concerning the constitutionality of President Obama's health care law is headed to the Supreme Court.

As the Wall Street Journal reports today, the White House is claiming they don't fear the case - stemming from an 11th Circuit decision - will strike down the individual mandate at the core of Obama's law, comparing the current legal effort to past assaults on major legislation.

The White House said it expects to be vindicated at the Supreme Court, and compared the law to landmarks such as the Civil Rights Act that survived constitutional challenges and won widespread popular acceptance.

"We know the Affordable Care Act is constitutional. We are confident the Supreme Court will agree," said White House adviser Stephanie Cutter.

While the likely mid-campaign timing of the decision may not be ideal for the White House, any attempt to push the ruling back into 2013 would have been risky, too. Opponents of the law were already calling for a quick Supreme Court ruling, so a slow-walking strategy would have made the administration look less confident—and the Supreme Court might have chosen to take the case quickly anyway.

Unfortunately for the White House, the landmark laws they refer to were both bipartisan and relatively popular - while the health care law is neither.

Writing at the Heritage Foundation, legal expert Hans von Spakovsky describes a key petition brought to the Supreme Court concerning the matter of severability by the National Federation of Independent Businesses (NFIB):

[W]ith this petition, the NFIB jumped ahead of Eric Holder’s slow-moving DOJ (which until Monday had done everything it could to slow-walk this case filed by 26 states and the NFIB). The NFIB is obviously not appealing the three-judge panel’s opinion about the unconstitutionality of the individual mandate. But the NFIB is appealing the portion of the panel’s decision that held that the unconstitutional individual mandate could be severed from the Obamacare legislation.

The NFIB is asking the Court to overrule this holding, since “Congress itself deemed [the mandate] ‘essential’ to the Act’s new insurance regulations.” Given that the 11th and 6th Circuits have issued “directly conflicting final judgments about the facial constitutionality of [Obamacare’s] mandate,” the case is one that the Court should obviously take up given its interest in eliminating conflicting opinions in the courts of appeal.

Additional petitions have been filed, and will be filed in the coming days, concerning this case. It is likely the Court will combine these matters into a single ruling, which will - barring some unforeseen change - arrive prior to the November 2012 election.

Benjamin Domenech

Benjamin Domenech (bdomenech@heartland.org) is a senior fellow at The Heartland Institute. Domenech... (read full bio)