ObamaCare Is On Its Way to SCOTUS


By not asking the entire 11th Circuit Court of Appeals to review an August decision by a smaller three-person panel that found the individual mandate component of Obamacare to be unconstitutional, the Justice Department signals that it soon intends to ask the Supreme Court to hear the case.

I may be misreading the situation, but I find that this is a reflection that the Obama administration is unsure of its re-election prospects.  If Romney or Perry were to win the 2012 election, the best thing Obama could do would be to put the healthcare law before the Supreme Court while he was still in office, where he can exert political pressure to uphold the law and solidify his legacy.  He might also feel that he needs to put his signature issue front and center to mobilize his liberal base just before the elections.  If Obama were confident of re-election, it would make more sense to take this issue off the table now so that it does not unpredictably affect votes, and also to wait to see if he could get a bigger congressional majority in the 2012 elections.

On the other hand, one might think that someone confident of re-election might act the same way, because it doesn’t matter then when the the health care issue is heard, and better to get it taken care of now.

There are 11 comments.

  1. Member

    I don’t know why they didn’t just send the silly thing to Anthony Kennedy on the day it was passed and have him tell us whether it is Constitutional or not, instead of going through this whole rigamarole. We could have saved a lot of time.

    • #1
    • September 27, 2011 at 4:01 am
    • Like
  2. Inactive

    This is a loser for Obama either way.

    If Obamacare is declared constitutional and the majority is against it he is punished at polls in 2012.

    If it is declared unconstitutional he is incompetent and loses in 2012.

    Justice Kennedy your pizza is ready ……

    • #2
    • September 27, 2011 at 5:12 am
    • Like
  3. Member

    Thank you for posting this. I’m not really able to judge how the Obama Admin feels about their chances of re-election from this move. But what you say seems to make very good sense.

    In the back of my mind, I question whether the Obama Administration is even thinking about how to make good sense. They could very well be at the “throw stuff to the wall and see what sticks” phase.

    I’m pretty sure the mandate is unconstitutional. But how will the Supreme Court rule? I’m extremely, extremely nervous the Supreme Court will look at this and figure out a way to let the mandate stick– essentially washing it’s hands of the matter– by saying something like “the mandate is part of a law that ‘too complex’ or ‘too important’ to be decided by us.”

    I’m having difficulty stating it precisely. But I’m worried we will be stuck with the mandate through some clever opinion writing.

    • #3
    • September 27, 2011 at 5:41 am
    • Like
  4. Thatcher


    Great piece in Forbes about the AMA and ObamaCare. 83% of American Doctors do not support ObamaCare. The AMA is bought and paid for and sticks to President Zero’s side. Doctors are leaving the AMA in droves for this reason. Our attitude to this issue should be BRING IT ON! Do you have a guess as to when the case might be brought up.

    • #4
    • September 27, 2011 at 5:46 am
    • Like
  5. Contributor

    When it comes to political strategy, it is always six of one, half a dozen of the other. The strongest reason to bring the case now is to keep control over the litigation. The Obama administration knows all too well that it took a dive on the Defense of Marriage Act, and may well think that the next Republican administration would do the same. If so, the Obama administration’s decision to bring ObamaCare before the Supreme Court need not be a sign of confidence that it will win, but rather a sense that the odds are incrementally better if it is in control of the litigation than if it passes to another administration. On this view, the preemptive strike is best understood as a damage control action. A second reason for taking the plunge now is that the administration has to be worried about the pace of implementation of this complex law if there is uncertainty as to whether it will survive. Right now it is the law of the 11th Circuit which could lead to some resistance to cooperation with the federal government. Taking it to the Supreme Court negates these counterstrategies.

    • #5
    • September 27, 2011 at 5:58 am
    • Like
  6. Contributor

    The third reason is, why think that the administration thinks from a political point of view that it is so bad to lose before the election? For one thing it takes an unpopular issue off the table, and allows the administration not to figure out how to control the great expenditures that come from this “cost saving” measure.

    In sum, this could backfire, but if I were in this position, I think that I would weigh the odds as the administration did.

    • #6
    • September 27, 2011 at 6:00 am
    • Like
  7. Thatcher

    Dear Mr. Epstein,

    I am simply not in your league on the legal side. However, I have a good political gut. The mood of the people is not compromising. They hate ObamaCare. The doctors hate ObamaCare. The business community MUST hate ObamaCare. Kill The Bill is what people want. From the practical economic side it is insane to allow this monstrosity to drag us under. There may not be an American Economy left if we do not torpedo ObamaCare asap. I think we need to cross the Delaware and attack the Hessians. I wouuld love to be standing up in the boat but I think that role is yours sir. Would you consider it.

    • #7
    • September 27, 2011 at 6:17 am
    • Like
  8. Inactive

    I don’t know… doesn’t feel right. It’s obviously a political calculation, but I think the last thing that Team Obama wants to talk about during the election is a mess like the Affordable Care Act.

    Could Obama be hoping to influence the inevitable pressure for Kagan to recuse herself? She should, but obviously doesn’t want to. Could Obama influence the media and public opinion to sit still while his former SG rules on this case? That would be worth the bad press, I reckon. (“Bad press” doesn’t really exist in Obama’s universe anyway.)

    I don’t see Obamacare passing without Kagan. Just a thought.

    • #8
    • September 27, 2011 at 6:31 am
    • Like
  9. Member
    Boymoose: This is a loser for Obama either way.

    If Obamacare is declared constitutional and the majority is against it he is punished at polls in 2012.

    If it is declared unconstitutional he is incompetent and loses in 2012.

    Justice Kennedy your pizza is ready …… · Sep 27 at 5:12am

    It’s a dicey call either way. If the mandate is ruled Constitutional, the Administration will have revived the issue just when other events seem to have pushed it to a back burner, at least as far as media coverage is concerned. If the ruling goes the other way, Obama can deflect some of the critcism by saying that the ruling against the mandate only reinforces the need to go to a complete single pay system, which has been their end game all the time. He can use it as a rallying cry to his base.

    Since the bill is likely to be repealed in the event the Republicans take over both houses of Congress and the White House, a ruling in favor of the mandate goes a lot further toward insuring that result.

    • #9
    • September 27, 2011 at 7:19 am
    • Like
  10. Inactive

    Force a quick decision. If he wins he might regain some mojo; if Obamacare gets declared un-constitutional and subsequently repealed/nullified Obama can blame any number of racists. With Obamacare gone – new employment surges. The economy rebounds a little and the PASSTHISBILLNOW gets credit in the MSM. How bummed would I be if I vote for say a Parry/Romney and we get a historic affirmative action 2nd term anyway.

    Now I’m bummed thinking about Romney pledging to ‘fix’ Obamacare.

    • #10
    • September 27, 2011 at 9:03 am
    • Like
  11. Inactive

    In my opinion, ObamaCare is a loser all the way around due to two primary reasons. First, the initial numbers that are coming in point to its abysmal estimates on how many people will be put onto the exchange. I think they were off by a factor of 10.

    Secondly, the individual mandate is a loser to all but the worst of the progressive left. Anyone who believes in liberty finds this mandate abhorrent, and that includes a large number of registered Democrats. People are smart enough to see that if the government is allowed to do this, they can mandate anything else they want. It’s beyond a slippery slope – it’s a cliff.

    • #11
    • September 27, 2011 at 11:13 am
    • Like