Breaking: SCOTUS to review ObamaCare, individual mandate this term; Update: The three questions
posted at 10:27 am on November 14, 2011 by Ed Morrissey
The Republican debates probably won’t have as much impact on the 2012 presidential race as the debates between the Supreme Court’s conservative and liberal wings, presumably moderated by — and conducted on behalf of — Justice Anthony Kennedy. The nation’s highest court has decided to tackle ObamaCare in this term, which means that they will drop a decision on Barack Obama and the nation just as the two parties prepare for their national conventions.
Thus far, all we know is that the court will hear arguments in the early spring of late March. What happens with the decision will rest in large part on which case leads the appeal they will decide. ObamaCare foes would probably prefer the devastating decision from the Florida court that threw out the entire law, rather than the DC Appellate Court decision by “conservative judicial icon” Laurence Silberman that upheld it. Most likely this cert came from the June filing that challenged the 11th Circuit’s ruling that upheld the Florida decision, a request that the Obama DoJ might be regretting after winning the last round in the DC appellate circuit. It probably doesn’t make too much difference, anyway, as the court will probably move to consolidate the various appeals.
The timing is highly consequential. It means that Obama almost certainly won’t get a chance to name a new court member before the Supremes decide whether the Commerce Clause is an opening through which Congress can force any kind of regulation and mandate. If they end up supporting ObamaCare, Barack Obama will claim vindication for the next few months of the campaign for his re-election bid. If they strike it down, Obama loses his signature achievement and has to explain that for the next few months leading up to the election — and explaining is not winning.
Update: National Journal reports that the Supreme Court has requested that both sides address three questions in their submissions: the individual mandate, severability, and jurisdiction. This looks promising for opponents on first blush, as it focuses on just how much of the law a negative ruling would invalidate, and under what circumstances. The 11th Circuit ruled that the individual mandate could not be severed from the rest of the law. Jurisdiction refers to standing in a suit against a law that has yet to take effect.