Why The Supreme Court Will (Probably) Overturn Obamacare

With the 11^th Circuit having just ruled that the individual mandate in The Affordable Care Act is unconstitutional, it is inevitable that the case will be ultimately decided by the Supreme Court.

Republicans hailed the 2-1 decision against the individual mandate as a ruling against an overreach by the federal government. Congressional Republicans have praised the ruling, with Minority Leader Mitch McConnell saying it is a decision against “an unprecedented, unwelcome and unconstitutional expansion of powers in the federal government.”

An Obama aide in a statement said she expected the law to ultimately stand the test of constitutionality. Health care aide Stephanie Cutters said in her response that health care can be regulated because it is a service everyone requires at some point, and therefore the Commerce Clause gives the federal government the authority to enact legislation with an individual mandate.

The Supreme Court will be deciding the issue sometime around the summer of 2012. It will be interesting to see their decision, but in the meantime, there are clues we can read into to guess their verdict. And those clues would seem to give opponents hope.

First, some math. With nine justices on the bench, five will be needed to overturn the law. The most obvious candidates for a nay ruling are the known conservative Justices Roberts, Alito, Scalia and Thomas.

I doubt any legal analyst would dispute the idea that these four are overwhelmingly likely to rule the law unconstitutional. These are men appointed by Republican Presidents. They’re all conservative. And while political views and loyalties theoretically should have no impact on judicial decisions, the sad truth of the day is that Supreme Court Justices are politicians in robes.

We can safely say that Justices Sotomayor, Kagan, Breyer and Ginsburg will rule the law constitutional. Sotomayor and Kagan are justices appointed by Obama, and they have dependably expressed liberal views in their brief tenures on the Court. Breyer is a Clinton-appointed Justice who has frequently supported a strong Federalist view over states’ rights in the past, and Ginsburg is the most liberal justice on the Court by most measures.

That leaves one Justice, who will likely decide the fate of Obamacare: the perennial swing vote, Anthony Kennedy.

It’s genuinely hard to predict how he will vote. But there is one tea leaf that should hearted conservatives.

The Supreme Court recently voted unanimously to uphold a challenge to federal authority in the case Bond v. United States. The case was about a jealous wife who put poison on door knob of her husband’s lover. When she was tried for breaking federal law implementing the Chemical Weapons Convention, her lawyers argued that that law exceeded Congress’ authority, and should be considered null. The appellate courts ruled that because the state had filed no complaint, the law couldn’t be overturned on grounds of federalist restraint. The Supreme Court disagreed, ruling that every citizen has the right to challenge federal laws.

                This ruling is no real help to Carol Bond, who broke plenty of state as well as federal laws. But the Supreme Court’s stance on states’ rights that was revealed by the ruling should be helpful to opponents of the health care law. The pivotal Justice Anthony Kennedy wrote the majority opinion, saying, “Fidelity to the principles of federalism is not for the states alone to vindicate.”

                The decision is a vindication of the idea of states’ rights, and the view expressed by Kennedy seems to be at odds with the views of health care reform advocates, who argue that the federal government should have the power to impose requirements to buy health care insurance for citizens in all fifty states.

                As the controversial law rolls onwards to meet its fate at the Supreme Court, all eyes will be on Anthony Kennedy. It looks as though the stars might just be aligned for the judicial rebuke of the century.