June 28, 2012
The Court will take the bench at 10 AM Eastern Time and will have a few matters before it gets to Obamacare. Since it seems likely that the decision is being written by Chief Justice John Roberts, it looks like it will be the last decision announced.
What will happen?
No one knows for certain, other than the Justices and a few of their staff, what the decision will be. I’m going to go out on a limb and make a couple of predictions.
The most important part of the law is what we call the Individual Mandate. That is the order that we must all buy Obamacare Insurance. Kiss it good-bye. It is gone.
The five conservative Justices greeted that law with skepticism when it was argued and it seems to have gone down hill from there. Some of the liberals were not too thrilled with the Individual Mandate either. Both Breyer and Sotomayor seemed skeptical as well.
The Individual Mandate will go down. It will be either 6-3 or 7-2 to strike down the individual mandate.
With the Individual Mandate gone, what happens to the rest of the bill? In legal terms that is called severability. Law makers try to put provisions in bills like this that say if one portion of the law is struck down the rest of the law survives.
That is true to a point.
The Justices have to decide among other things, if the portion of the law that was struck down, in this case, the Individual Mandate, is so crucial to the law itself, the rest of the law cannot survive.
Obamacare is going to be totally struck down. The decision will probably be 5-4 though it could be 6-3 with Breyer going with the conservative majority.
Why would it be struck down?
It is the law of the Path of Least Resistance.
If the Supreme Court strikes down the Individual Mandate but leaves the rest of the law intact, they would then have to go through that massive bill, all 2700 pages of it and specify which parts of the bill survive and which parts are struck down as a part of the Individual Mandate. There are also other parts of the law, such as the Medicaid expansion that could also be struck down. The more parts of the law that are struck down, the harder it is to justify the remainder of the bill surviving.
During oral arguments, Justice Breyer hinted at this, indicating he had not read the entire 2700 page bill.
If the entire 2700 page bill is struck down, the Justices do not have to go through the bill, line by line, deciding what remains. Such a decision also wipes out the entire second round of Obamacare litigation that is coming, including the Catholic Church’s lawsuits on religious freedom grounds.
Justices and Judges are like anyone else. Offer them the easy way or offer them the hard way, they will choose the easy way.
Lawyers say, “Bad cases make bad law.” Sometimes bad laws make good cases. This could happen though it is unlikely.
In a perfect world, the Court would use this as an occasion to overrule Wickard v. Filburn, the 1942 case that stretched the Commerce Clause of the Constitution beyond all recognition and gave the Federal Government the power to do many of the things it is now doing.
By overruling Wickard, it would set the stage for a massive roll back of the power of the Federal Government. Regrettably, I don’t think there are five Justices on the Supreme Court who would agree to do that.
The most pleasant surprise from today would be overruling Wickard. However, I expect it to be a good day and I will be on the steps of the Supreme Court at 10 ready to spike the football to celebrate the triumph of freedom and liberty over the tyranny of Obama and his Party of Treason.