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The High Court and Obamacare -- Observations and Predictions

by John F. Tamburo, Editor in Chief, Publisher
Originally Posted: 3/28/2012 12:17:22 PM

Synopsis:

The Supreme Court now considers the fate of the Obamacare boondoggle. In a rare three days’ arguments, the court first considered whether an obscure 1867 law precluding legal challenges to taxes precluded their consideration. The Justices one and all seemed eager to bypass this issue, and vote that the cash penalty for failure to obey Obamacare’s command to buy and carry health insurance is not a tax subject to that law. I predict that the Supremes will vote 9-0 to consider the merits of the case.

Tuesday’s arguments centered on the Constitutionality of the mandate itself. The Solicitor General, Donald Verrilli, simply collapsed under withering questions and objections from the Chief Justice, joined by Justice Scalia and (in a development sure to leave liberals depressed) Justice Kennedy. In point of fact, Justice Kennedy asked the toughest questions. He seemed to indicate that Obamacare had no "limiting principle" to its use of government power, and that Obamacare exercised a plenary police power not held by the government. Justice Kennedy acknowledged the general principle that laws are presumed to be constitutional, but stated that this law apparently enacted a fundamental change in the relationship between Federal government and the individual. He saw this change giving rise to a higher duty to demonstrate that the law complied with the Constitution. Mr. Verrilli was bereft of any sort of answer to this proposition. Justices Kagan and Ginsburg tried to throw the flailing attorney lifelines to help him explain the Left’s command-and-control position, but to no avail.

Even worse, one of the leftists on the panel, Justice Sotomayor, seemed to question the overreach of the government in Obamacare, at least for a short time. Therefore, I predict that the court will strike down the individual mandate, 6-3, with the Chief Justice, and Justices Thomas, Scalia, Alito, Kennedy and Sotomayor voting to find it unconstitutional

Today’s arguments focus on Obamacare’s attempt to force the states to eat at least part of the cost of a huge Medicaid expansion, and whether the opt-out terms (loss of all Medicaid funding) are so extortive as to render this a usurpation of states’ rights. The justices’ questions for this one are yet to be known, since that session is later on Wednesday. However, based on my gut, I predict that this will be overturned 5-4, with The Chief Justice, and Justices Thomas, Scalia, Roberts and Kennedy voting to overturn.

And the big Kahuna was argued today: If the mandate is unconstitutional, can just the mandate be overturned or should the whole thing go? After reading the excerpts of the oral arguments, it’s clear that the whole law is in grave danger of being tossed. Justice Kagan clearly stated her view that this is the case. Justices Scalia and Kennedy thought it impossible to do a line-by-line review of the huge statute to determine what stays or what goes. Justice Scalia remarked (and quite correctly so) that a surgical removal of the mandate would "bankrupt the insurance companies." If the mandate is revoked, I predict that a 7-2, 8-1 or even an unanimous panel would vote out the whole of the act. The only wildcards in this argument appear to be Justices Ginsburg (who should be up there with pom-poms cheering for the act -- she has made no pretense of neutrality in this matter) and Breyer.

Political Ramifications:

On Tuesday, CNN’s Jeffery Toobin called the oral arguments a "train wreck" for the Obama administration. Mr. Toobin had good reason for his choice of words. Mr. Verrilli was tongue-tied and unable to offer a cogent explanation for a law that was obviously designed to render the Constitution irrelevant and to usher in totalitarianism. As the freedom-loving Justices questioned him, Mr. Verrilli could not answer truthfully because he would have given it all away. But I digress.

If the law is upheld, expect a GOP Tidal wave in November that dwarfs the 2010 elections. Mr. Romney, who is most likely our nominee, will glide to a victory of Reaganesque proportions. In fact, any of the four contenders for the nomination would sail to victory in that scenario.

If the mandate alone is revoked but the rest of the law allowed to stand, a similar result to the above will occur. Mr. Romney and the GOP will run on a "we must repeal" platform, and win solid majorities in the Congress. Mr. Romney himself may still win as many as 45 states.

If the whole law is canned, the GOP may lose some steam. However, Mr. Romney and the GOP still have a remarkably strong platform on which to run.The people may not think it is as urgent to kick out every Democrat. However Mr. Romney will rightly emphasize that the President picks Supreme Court justices, and Mr. Obama, given another four years, could pack the court with command-and-control leftists who will give the Feds unlimited powers and kill our liberty. I can see the Romney slogan: "We dodged a bullet. Let’s not let Obama reload!" Note to Mr. Romney: Feel free to use this slogan gratis.

With the whole of the boondoggle eliminated, I would expect Mr. Obama to be labeled an ineffective president, who incompetently pushed through an unconstitutional boondoggle. I would expect the Democrats in the Senate to be labeled corrupt and inefficient political hacks, whose votes for the boondoggle were bought off with favors, and spendthrift wild-eyed lunatics who would not even honor their Constitutional duty to pass a budget for four years. these arguments would be cogent and correct. The GOP Will enlarge its majority in the House, take the Senate, and Mr. Romney will smile as he takes the oath on January 20, 2013.

Therefore, in the end, the political fallout of the Obamacare decision is simply the size of the GOP victory. Six years ago, Ann coulter remarked that the Democrat party was in its death throes. People thought her insane after 2006 and 2008. After 2010 and 2012, she will be hailed as a prophetess. The party of command, control and overreach is dying an ignominious death in November, and none too soon.

In a later article, I will discuss what the GOP needs to avoid in order to keep the evil that is progressivism from rising again.