Legal experts: Court won't strike down 'Obamacare'

[babylonsister]

Posted with permission. Potentially depressing; sorry 'bout that.

http://maddowblog.msnbc.msn.com/_news/2012/03/26/10867648-legal-experts-court-wont-strike-down-obamacare

Legal experts: Court won't strike down 'Obamacare'
By Steve Benen
-
Mon Mar 26, 2012 9:26 AM EDT


Associated Press

Conservative opponents of 'Obamacare' prayed outside the Supreme Court yesterday.


The Supreme Court this morning will kick off the first of three days of hearings on the constitutionality of the Affordable Care Act, and interest in the case is as strong as anything we've seen in many years. For those who watch the high court closely, however, there's a striking lack of intrigue about the outcome.

National Journal surveyed former Supreme Court clerks and lawyers who have argued cases before the high court about the health care law, and the consensus was that the Affordable Care is likely to prevail. One respondent said, "I don't think this case will be nearly as close a case as conventional wisdom now has it. I think the Court will uphold the statute by a lopsided majority."

That's not at all an unusual predication. On the contrary, despite the polls and ongoing political fights surrounding "Obamacare," most legal insiders, even on the right, find it unlikely the Supreme Court will ignore precedent and strike down the law.

But the justices have proven to be unpredictable at times. Jon Chait had a good item the other day on setting expectations.

The legal case against the Affordable Care Act is completely absurd. You can make the argument sound kind of plausible, but if you’re a law-talking guy, you can selectively cull through precedents and pile assumptions onto each other just so in order to reach pretty much any conclusion you want. That’s pretty much what the legal challenge to the Affordable Care Act would do. As a straightforward interpretation of constitutional precedent, it’s just silly.

Legal analysts are not dismissing the case completely, but that's only because they don’t dismiss the possibility that five Republican-appointed justices will leap at a chance to advance the partisan agenda of their choosing. Jack Balkin, in an article suggesting it’s highly unlikely the law will be found unconstitutional, searches through history and can only find one example of the Court making a ruling so radical and lacking in constitutional basis.

The example was an 1895 case in which the court struck down the federal income tax, with overzealous conservative justices responding to a far-right panic about an imaginary "socialist" threat.

In other words, the Obama administration, congressional Democrats, health care advocates, working families, the uninsured, and Americans who occasionally rely on the American health care system have nothing to worry about, just so long as five conservative justices resist the urge to get caught up in a larger ideological crusade.

Hmm.

Common sense suggests the outcome at the Supreme Court is a no-brainer -- of course the court majority will rule in favor of the law. If the justices stick to precedent, it won't even be close -- they'd have to take a truly radical approach to the law to conclude otherwise. But since the Roberts Court is quite capable of radicalism, predictions should probably be taken with a grain of salt.

[zipplewrath]

1. Overturning "Wheat"

Scalia and Thomas have wanted to overturn previous decisions on federal power and the commerce clause. This could give them the ammunition. The question is will they find 3 more to go along. I'm dubious, but I also don't trust this court AT ALL.

[BlueDemKev]

15. Keep an eye on Roberts' and Kennedy's questions tomorrow....

....as the court hears arguments on the "individual mandate." I truly believe those two justices hold the key to which way the court will rule.

[SlipperySlope]

18. Do you mean Wickard v. Filburn

I've looked at that case for decades as an example of extremely bad precedent. I'd always wanted to see it overturned, but somehow imagined the test case would be something I could identify with more.

[zipplewrath]

22. Yes

It was a very bad case. Unfortunately it's been what 80 years? since then. Alot of federal law is based upon that power, including civil rights law. I can see (and they have a little) trying to narrow it a bit. But just flat out overturning it would be a disaster.

[ProfessionalLeftist]

2. Bush V Gore, Citizens United...

...this clown court cannot be relied upon to interpret the law or the constitution in an unbiased manner uncolored by their political ideology or political connections (as in the case of Clarence Thomas, who ought to be impeached from the court due to his Tea Party connections, which he flaunts at every opportunity both on and off the bench).

A reasonable person - and reasonable legal eagles - might think they'd not strike down the ACA. But we've seen that these justices are not all reasonable people. Having been politically appointed to uphold the highest laws in the land without bias, they clearly cannot be trusted.

[BlueDemKev]

8. Clarence Thomas....

...is a complete looney-bin who's totally unqualified to sit on the Supreme Court. Fortunately, not all of the conservative justices are as brainlessly partisan as he is.

Praying hard and hoping for the best....

[Redneck Democrat]

19. 5-4

A few of the names may change, but the fascism remains.

[Pryderi]

3. Didn't the government require militiamen to purchase firearms in the 18th century? n/t

[provis99]

4. it was a suggestion, not a law.

[DCBob]

5. This does appear to be the likely outcome..

one other factor that ensures this result is that the Repub Supremes realize there will probably be no political gain by striking it down.. in fact it might actually benefit the President by taking a talking point away from the GOPers.

[BlueDemKev]

6. Court's legitimacy is at stake

....The court's legitimacy is really at stake here. If the health insurance reform law is struck down in a 5-4 vote along the traditional partisan lines, it will send the signal that the Supreme Court is nothing more than a political body and is no longer an independent institution.

Every Senate hearing of any future SC nominee will be littered with questions like "What's your stance on this? What's your position on that? Oh, you don't have one? Okay, the hearings are suspended. You go home, study the matter, formulate an opinion and let us know when you have one."

And you know what? I'll be ALL FOR IT! Ronald Reagan started this shit, not us.

[DCBob]

7. The SC already lost its legitimacy in 2000.

Bush v Gore.

[BlueDemKev]

9. That's behind us, we need to focus on now...

...and Chief Justice John Roberts is deeply concerned about the perceived legitimacy of his court.

[DCBob]

11. I have not forgotten it.

It will take a long time to earn there legitimacy back for me.

[derby378]

12. "Behind us," my ass...

2000 was a coup d'etat. Never forget. So many Democrats are playing a game of "Let's Pretend The Bush Administration Never Happened" that it's just flat out sickening.

[BlueDemKev]

14. We can't undo what happened 12 years ago, HOWEVER....

...we CAN work to clean up the resulting disaster from it.

[underpants]

10. 6-3 never even close. (LINK) . Another case of the RW media leading the believers around by the nose

so that they can play victim.

http://www.democraticunderground.com/101620917

[Zalatix]

13. Why would a RW court strike this down? RomneyCare 2.0 is a massive nationwide corporate giveaway.

This USSC would never turn down a chance to make corporations richer or give them more power.

[mistertrickster]

17. I should have read your post first . . . +1000 nt

[mistertrickster]

16. ObamaCare benefits big corporations -- that's why it passed.

The SCOTUS knows that and will not vote against the folks who keep them tightly leashed.

[pampango]

20. Record number of "friend of the court" briefs filed with SC in ACA case. Here's the list:

http://go.bloomberg.com/health-care-supreme-court/2012-03-01/health-care-primary-sources-statutes-court-opinions-briefs/

Merits Briefs for the Petitioners

Brief of the Department of Health and Human Services et al. regarding the Minimum Coverage Provision
Brief for the Department of Health and Human Services et al. regarding the Anti-Injunction Act
Reply Brief for the Petitioners on the Anti-Injunction Act

Amicus Briefs in Support of the Petitioners

Brief for AARP
Brief for American Nurses Association et al.
Brief for Blue Cross and Blue Shield of Massachusetts
Brief for Constitutional Law and Economics Professors
Brief for 104 Health Law Professors
Brief for Constitutional Law Scholars
Brief for Child Advocacy Organizations
Brief for the NAACP Legal Defense and Educational Fund, Inc. et al.
Brief for the California Endowment
Brief for the National Women’s Law Center et al.
Brief for Prescription Policy Choices et al.
Brief for the Jewish Alliance for Law and Social Action et al.
Brief for Health Care For All et al.
Brief for California Public Employees Retirement System
Brief for Law Professors Barry Friedman et al.
Brief for Lambda Legal Defense Fund, et al,
Brief for David R. Riemer and Community Advocates
Brief for Department of Health and Human Services et al.
Brief for the Governor of Washington Christine Gregoire
Brief for Health Care Policy History Scholars
Brief for Senate Majority Leader Harry Reid et al.
Brief for Small Business Majority Foundation, INC and the Main Street Alliance
Brief for State Legislators
Brief for the States of Maryland et al.
Brief for Service Employees International Union and Change to Win
Brief for Economic Scholars
Brief for the American Federation of Labor and the Congress of Industrial Organizations

Merits Briefs for the Respondents

Brief for the State Respondents on the Anit-Injunction Act
Brief for Private Respondents on the Anti-Injunction Act
Brief for the State Respondents on the Minimum Coverage Provision
Brief for Private Respondents on the Minimum Coverage Provision
Reply Brief for State Respondents on the Anti-Injunction Act

Amicus Briefs Supporting the Respondents

Brief for Citizens’ Council for Health Freedom
Brief for the Cato Institute et al.
Brief for Association of American Physicians And Surgeons, inc., and Individual Physicians
Brief for Judicial Watch, Inc.
Brief for American Catholic Lawyers Association, Inc.
Brief for the American Center for Law and Justice et al.
Brief for the American Legislative Exchange Council
Brief for American College of Pediatricians et al.
Brief for the American Civil Rights Union et al.
Brief for the Cato Institute
Brief for Gary Lawson et al.
Brief for the Catholic Vote and Steven J. Willis
Brief for Center for Constitutional Jurisprudence et al.
Brief for Citizens and Legislators in the Fourteen Health Care Freedom States
Brief for Citizens’ Council for Health Freedom
Brief for the Commonwealth of Virginia Ex Rel. Attorney General Kenneth T. Cuccinelli
Brief for Docs4patientcare et al.
Brief for Employer Solutions Staffing Group
Brief for Egon Mittelmann, Esq.
Brief for Former U.S. Department Officials
Brief for the Foundation for Moral Law
Brief for HSA Coalition, Inc. and the Constitution Defense Fund
Brief for John Boehner
Brief for the Landmark Legal Foundation
Brief for Liberty Legal Foundation
Brief for Members of the United States Senate
Brief for the Mountain States Legal Foundation
Brief for Oklahoma
Brief for Partnership for America
Brief for the Rutherford Institute
Brief for Senator Rand Paul
Brief for Stephen M. Trattner
Brief for the Thomas More Law Center et al.
Brief for Virginia Delegate Bob Marshall et al.
Brief for the Washington Legal Foundation and Constitutional Law Scholars
Brief for Authors of Origins of The Necessary and Proper Clause and the Independence Institute
Brief for Economists
Brief for the Independent Women’s Forum
Brief for the Tax Foundation
Brief for the Missouri Attorney General
Brief for Montana Shooting Sports Association
Brief for the American Life League
Brief for the Caesar Rodney Institute
Brief for Liberty University, Inc. et al.
Brief for Project Liberty

Amicus Briefs Supporting Neither Party

Brief for the Health Foundation of Greater Cincinnati regarding minimum coverage

Merits Briefs for Court-Appointed Amicus regarding the Anti-Injunction Act

Brief supporting vacatur

Amicus Briefs Supporting the Court- Appointed Amicus

Brief for Tax Law Professors
Brief for Mortimer Caplin and Sheldon Cohen

Amicus Briefs Supporting the Respondent regarding the Anti-Injunction Act

Brief for the Liberty University, Inc. et al.
Brief for the Cato Institute
Brief for the American Center for Law & Justice
Brief for Center for the Fair Administration of Taxes

[woo me with science]

21. Of course it will be upheld by a corporatist court.

The corporate mandate was the goal all along, and both parties knew the outcome well in advance of all the faux negotiations. They managed to mandate that *every single American* purchase an outrageously overpriced corporate product for their *entire lives.*

Think about that. What a coup for the one percent. This sort of mandate to buy is unprecedented.

The mandate was the goal all along, and it was planned to profit the insurance companies, period. They knew from the outset that neither side would want it, but they fired up one side with the promise of universal health care and the other side with the fear of government-run health care, and they orchestrated a "compromise" that they knew neither side would want, but that the insurance companies did. That is why it was never presented honestly and why we got the Kabuki theater of the negotiations.

It was a brilliant, bipartisan scam.