June 24th, 2012

Waiting for SCOTUS: and by the way…

…for what it’s worth, I’m made uneasy by all the assumptions that SCOTUS will declare the individual mandate unconstitutional when it issues its ruling.

Maybe it’s just my tendency towards brooding, but even though I don’t usually make predictions I’ll go on record here as saying my gut feeling is that the Court will not strike down the mandate. Why? Because the Court is exceedingly reluctant to invalidate a major act of Congress, even one passed with such shenanigans and unsupported by the American people, and so it would require a very high burden of certainty that it’s unconstitutional before declaring it so.

However, my gut feeling is that, if SCOTUS does declare the mandate unconstitutional, it will be a very narrow ruling and the Court will not rule that the entire Act is unconstitutional.

If that narrow ruling occurs, the question is what will happen next. If the Democrats still controlled Congress, they could just go back and change the mandate to a tax. Voila!

But they don’t, and so they won’t. My gut feeling (boy, despite belonging to a person who doesn’t like to prognosticate, my gut is pretty active today) is that they will just lay low and hope to change it after the 2012 election, when they might take control of the legislature again, particularly if they campaign on this issue. I don’t think they will actually succeed in taking control of the House in 2012, but they might figure that at least they’ll have a new banner around which to rally the troops for November (restore Obamacare!), plus another cause: re-electing Obama so that he can appoint a couple more SCOTUS justices and finally get a Court that will cooperate fully with the liberal agenda.

[NOTE: And then there's always court-packing.]

[ADDENDUM: Former SCOTUS law clerks, as well as InTrade, disagree with me. And the Wall Street Journal describes four possible ways the Court could go.

And in this article about why liberal prognosticators originally pooh-poohed the constitutionality problem, when author Peter Baker writes of decades of Court precedent "affirming Congress’s authority to regulate interstate commerce," that's a euphemism. Those precedents have not merely affirmed Congress's authority to regulate interstate commerce, they have expanded it beyond all recognition, beginning with Wickard v. Filburn in 1942, as I wrote in this PJ article.]

15 Responses to “Waiting for SCOTUS: and by the way…”

  1. NeoConScum Says:

    N-Neocon…Kindly instruct your gut to Shut the Heck Up, dear landlord. Mute button. Gag the sucker. FEEEEEEEEED it FOOOOOD.

    My own gut, worn flat by continual underestimation of the carnage His Infantile Majesty would reap, is telling me nuthin’. My brain keeps playing the questions the justices loaded on the Solicitor Gen’l weeks ago…Please, God, let those be a ‘Tell’!!

  2. Michael Says:

    Alas, I agree with you but I hope against hope that I am proven wrong

  3. james Says:

    It does not matter what decision is rendered. There is a flood tide building that will sweep the Dems away. Even if it stands, remember Prohibition (it was an amendment), it was ignored, flouted, and actively resisted. It also spelled the end of the Temperance movemnt as a political force.
    Take heart the enemy is always fiercest before his fall.

  4. Rose Says:

    James, may it be so.

  5. Doom Says:

    I have the same doubts about the court. I had thought to write it up but just… didn’t want to see it typed out, as if that might… bring bad luck. Oh, not casting any stones. And, actually, it’s good that someone else is… worried. Zero has not been doing well with the Supremes, though. But you just never know with those yahoos. Bah!

  6. parker Says:

    Should SCOTUS deem BHOcare is Constitutional; just wait until seniors (that’s me) realize BHOcare will cannibalize medicare and put them in front of a ‘death panel’ a la UK centralized healthcare. No dim will be elected for many moons.

  7. kolnai Says:

    No surprise- I share the gut feeling.

  8. NeoConScum Says:

    This month’s wait is an excellent reason to remember another huge stake in November. The Supremes will almost certainly lose RBG & JPS in the next presidential term. Possibly more. We must have constitutionalists replacing them. An Obama appointed court–more than he’s already done–would be an American Catastrophe.

  9. NeoConScum Says:

    Whoops…Imagine me having Justice Stephens still on the court..! Should have been RBG & AK(Anthony Kennedy)above.

  10. uncleFred Says:

    I believe the lack of a severability clause makes this an all or nothing decision by the court. Without the clause, the court is required to go through the entire law paragraph by paragraph and determine what gets kept and what gets struck. That is simply impractical in the available time, and probably equally impractical because of resource limitations at the court.

    I’d like to think that Kennedy, will prevent this absurd expansion of governmental power from standing.

  11. DNW Says:

    ” However, my gut feeling is that, if SCOTUS does declare the mandate unconstitutional, it will be a very narrow ruling and the Court will not rule that the entire Act is unconstitutional. ”

    Repeating what others have said: Unfortunately, I have the same feeling.

  12. neo-neocon Says:

    uncleFred: the legal experts I’ve read seem to think the Court can strike down just the mandate and leave the rest if it wants to, despite the lack of a severability clause.

    A severability clause would come into play if they wanted to strike down the whole thing for some reason, and yet the only part that was really unconstitutional in their eyes was the individual mandate. If there was a severability clause then they couldn’t do it; they’d have to find the individual mandate alone unconstitutional and leave the rest. But without the clause, they have the option of doing either.

    At least that’s my understanding.

  13. texexec Says:

    Waiting for this decision is starting to be a pain.

    I think the Supremes are waiting until the last moment to issue a ruling because they realize their ruling will be controversial no matter what they decide and they wanna be out of the office when the calls start coming in.

    Either that or one or more of the justices just want a little more time to finalize their decision(s).

  14. Tom Says:

    I personally think that the BEST thing that could happen for conservatives is for the law to be upheld. It will enrage the conservative base, and get them inspired. It will get them to the polls in record numbers, while liberals might be a little more inclined to be lazy that day. I think the opposite might be true if it’s overturned. Liberals would be enraged and motivated, while conservatives might be a little less inclined to get out and vote.

  15. DNW Says:

    “Maybe it’s just my tendency towards brooding, but even though I don’t usually make predictions I’ll go on record here as saying my gut feeling is that the Court will not strike down the mandate. Why? Because the Court is exceedingly reluctant to invalidate a major act of Congress, even one passed with such shenanigans and unsupported by the American people, and so it would require a very high burden of certainty that it’s unconstitutional before declaring it so. ”

    It wasn’t your tendency toward brooding. It was those hours spent in a classroom reading through old cases and progressive court justifications for the expansion of Federal power over the individual.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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