The more I read about the precedents that will be used to decide this case, the more I am convinced that Obamacare will be deemed Constitutional. I hope I am wrong. After reading about each of the cases that will be used as precedent, we can only hope that the five-member conservative majority will make their own determination of Constitutionality rather than relying on “stare decisis”. Liberals do it all the time.
Excerpt: The U.S. Supreme Court has scheduled a nearly unprecedented three days of arguments beginning Monday on Dept. of Health and Human Services vs. Florida, better known as the Obamacare case. Conservatives hope the five-member conservative majority, led by Chief Justice John Roberts, will strike down the healthcare act as unconstitutional, while supporters of the law hope swing-vote Justice Anthony Kennedy and possibly Roberts himself will join the liberals in upholding it.
Key to understanding the arguments for and against the law are a string of cases going back to the early years of this country, when memories of how the Constitution was written were still clear and the precise roles of Congress, the President and the judiciary were quite murky. The fundamental question is whether the Commerce Clause in Article I of the Constitution, which restricts Congress to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” restricts Congress from passing a law requiring all citizens to buy health insurance.
Conservative justices, in particular, feel bound by the principal of stare decisis to honor the decisions of the judges who came before them. But when it comes to Obamacare those past decisions — particularly the ones upholding economic regulations from the New Deal era — will make it hard to invalidate a law that was fully deliberated by Congress and passed to regulate an interstate industry that accounts for 18% of the gross domestic product.
Sutton offered some hope to conservatives, saying it wasn’t the job of an appeals court to make the final statement on the limits of Congressional power. That job, he said, lies with the Supreme Court:
The Supreme Court can decide that the legend of Wickard has outstripped the facts of Wickard—that a farmer’s production only of more than 200 bushels of wheat a year substantially affected interstate commerce. A court of appeals cannot. The Supreme Court can decide that Raich was a case only about the fungibility of marijuana, not a decision that makes broader and more extravagant assertions of legislative power more impervious to challenge. A court of appeals cannot.
And Obamacare foes can only hope a majority of Justices will take up Sutton’s invitation to revisit old decisions.
Read full Forbes with full discussion of the ten cases here.