I heard an interesting theory on Obamacare jurisprudence this morning on the radio. I didn’t catch the fellow’s name, but the theory went something like this.
Given that wide interpretation of the commerce clause is so crucial to so much of the progressive agenda, a majority opinion striking down the individual mandate and thus limiting the scope of the commerce clause could be devastating.
Since it seemed to many at the time of oral arguments that the individual mandate might be is serious jeopardy, that something must be done to avoid this.
So the theory goes that some liberal justices might join in striking down Obamacare in its entirety based exclusively on the Medicaid expansion mandates and the ensuing 10th amendment issues and thus try to avoid any precedent limiting the commerce clause.
Obamacare dies, but the rest of the progressive agenda lives on.
What do you think?
June 27, 2012 at 4:26 pm
The Court spent too much time on this in oral arguments to be ignored in the final judgment.
This is what I predict: there will be a judicial test created to determine if a law is covered (justified) under the Commerce Clause (Art. 1, Sec 8). Something similar was done in patent law with the enablement requirement (under 35 USC 112, 1st para). The "Wands Factors" (In re Wands) were used to determine if a patent disclosure is not enabling to a claimed invention.
Something like "Commerce Factors" might be created by the SCOTUS majority to address this very big problem (BTW, FOCA was justified under the Commerce Clause, too.)
June 27, 2012 at 6:42 pm
Interesting but I'm doubting that type of scheme would work. As long as at least 5 other justices strike down the mandate WITH reasoning that DOES limit the commerce clause, would it matter if some liberal justices tried to join in but invent another reason? The commerce clause would still be limited as per the reasoning of at least 5, no?
June 27, 2012 at 7:01 pm
One problem is that the insurance mandate is the centerpiece of Obamacare – is essential to it's existence and the claim of its lowering of prices – so if the Supreme Court strikes down the insurance mandate they have effectively struck down Obamacare also.
June 27, 2012 at 8:02 pm
Plausible scenario – we'll see
June 27, 2012 at 8:41 pm
Sounds like wishful thinking on the part of the liberals.
June 27, 2012 at 10:22 pm
Like the High Priests of the State are going to strike down anything that limits the power of the state. Get real. Since when have they given a crap about the Constitution? Their self appointed position as "interpreters" of the Constitution is unConstitutional, but how else to force at gunpoint all that unpopular social engineering that the legislature (in their concern for re-election prior to computerized cheating) were so loathe to do?