Some Optimism About the Court

by Jonathan Cohn | January 31, 2011

Like most of the reporters covering health care reform, I've interviewed constitutional scholars and litigators to see whether they think the Supreme Court will rule to invalidate part or all of the Affordable Care Act. And, like most of those other reporters, I've discovered a rough consensus: Chances are the Court will uphold the law, but it's hardly the slam dunk many legal experts (not to mention those of us who aren't legal experts) were predicting just a few months ago. Truth is, nobody is really sure what the justices will think.

Still, they may have given us a hint a few weeks ago, when they refused to hear a case involving the reach of the Commerce Clause, which is one of the issues in the suits against the Affordable Care Act. Time's Kate Pickert explains why:

A recent decision, however, makes me think perhaps the challengers to the individual mandate have a steeper uphill climb than many realize. Earlier this month, the Supreme Court declined to hear a case that could have restricted the federal government's powers under the commerce clause of the constitution. ... 
The case the Supreme Court justices declined to hear recently – Clarence Thomas and Antonin Scalia dissented – had to do with a man arrested on charges he violated a federal law barring convicted felons from owning bulletproof vests. The federal government has the power to enforce this law, it argued, because it has the power to regulate interstate commerce. The bulletproof vest in question had at some point crossed at least one state line, making it fall within the bounds of federal regulation, according to the government. Allowing this law to stand, argued challengers, meant the commerce clause – and federal power - was virtually limitless. This is similar to the argument being made by challengers to the individual mandate.
That the high court would not even hear these arguments recently is not a good sign for Affordable Care Act foes who need at least five justices to hear their case and conclude the commerce clause does not allow the federal government to force Americans to purchase health insurance. ...
We won't know for possibly a year or two. But for those keeping score, the tally is now officially tied, with two judges saying the individual mandate is constitutional and two saying the opposite.

That last paragraph is important too. Everybody (myself included) is having a tizzy over Judge Roger Vinson's decision. But, Fox hype notwithstanding, his decision just one of several.


 

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