Why Obamacare will survive in the Supreme Court

[underpants]

http://www2.timesdispatch.com/news/2011/mar/06/tdcomm02-why-obamacare-will-survive-in-the-supreme-ar-884246/

By RICHARD J. BONNIE, ANDREW J. PEACH
Published: March 06, 2011


Richard Bonnie is the Harrison Foundation Professor of Medicine and Law, and Professor of Public Policy at the University of Virginia, where he directs the Institute of Law, Psychiatry and Public Policy. Andrew Peach is a law student at U.Va.



The individual mandate admittedly presents what lawyers call a case of first impression — meaning that Congress has never done anything quite like this before. However, if the justices adhere to well-established constitutional principles and do not disavow their previous rulings, a firm majority of the court will rule that the individual mandate is within Congress' constitutional authority.

In 2005, Scalia laid out his commerce clause jurisprudence in a medical-marijuana case, Gonzales v. Raich . The issue in Raich was whether the federal Controlled Substances Act, which criminalizes the cultivation or possession of marijuana — including its cultivation and use solely for personal medical purposes — exceeds Congress' power to regulate "commerce among the several states" under the commerce clause.

Scalia cited approvingly one of the most expansive interpretations of the commerce clause in constitutional history, Wickard v. Filburn , a post-New Deal decision that allowed Congress to regulate the production of wheat for personal consumption on the farm because of the impact such production, when aggregated, would have on the regulated wheat market.

As Scalia summarized, citing precedent, "here Congress has the authority to regulate interstate commerce, 'it possesses every power to make that regulation effective.'"

In the final analysis, Obamacare's individual mandate may be imprudent, a product of haste, partisanship and political miscalculation, and a novel and expansive exercise of federal power. But however vociferous the objections may be, it is well within Congress' constitutional authority as understood by a firm majority of the Supreme Court, including Scalia.

[Demeter]

1. Because there's no perversion Scalia and Thomas Can't Pass up.

[OHdem10]

2. Just a thought that confounds me from time to time. By now most

of you have gathered I monitor a lot of TV including
C-Span and have done this for years. Therefore, I
have watched the Conservative Movement. Up until this
year they appeared to have an "in" at C-Span. Lotsa
Meetings by various groups and individuals from the
Movement. The Movement realized years ago the importance
of the Supreme Court. In fact, they started nurturing
young attorneys whom they believed would be effective justices
(carry on the conservative ideals). If you remember, GWB
always had a list of 'good' possibilities. These attorneys. went
through a specific court of appeals, had certain experiences.
CJ Roberts was one of the stars. J Alito was another.

I want to believe with all my heart that the Court will follow
their own precedents re Commerce Clause. After watching this
last election and these new Republican Governors big footing
change that in the long run will hurt the country. They are
letting Ideiology trump Democracy. Therefore I get a bit nervous
when discussing whether or not the SCOTUS will uphold HCR.
Believe me I want to believe that at least of of the branches
of Government still works.

[elocs]

3. This all hinges on the big "however". I wouldn't place bets on this. n/t

[Lil Missy]

4. As we well know by now, if they want "Obamacare" to go away, they'll pull something outta their ass.

"if the justices adhere to well-established constitutional principles and do not disavow their previous rulings, a firm majority of the court will rule that the individual mandate is within Congress' constitutional authority"

This is the court that gave us Citizens United, Bush v Gore. Scalia. Thomas.