2012-01-27 04:31:14 UTC
"ObamaCare") soon. Specifically, SCOTUS hears arguments on Monday
March 26th over whether court action is premature, because no one yet
has paid a fine for not participating in the overhaul. Tuesday's
arguments will be over whether Congress overstepped its authority with
the law. Finally, on Wednesday justices will hear whether the rest of
the law can take effect even if the health insurance mandate is
I predict the Court will preserve the law by at least a 6-3 majority,
though on differing grounds. Evidence for my position appears below.
I would be interested in reading others' opinions on how this case
will go. I am not a lawyer.
Three conservative appeals court judges have already opposed the
position of opponents of the ACA. Laurence Silberman (appointed by
Reagan) upheld the ACA. His conservative colleague Brett Kavanaugh
(appointed by Bush II in 2006) flatly refused to consider the
constitutional arguments, writing that jurisdiction was the problem:
Not until the law took effect and someone objected to taxes imposed by
it could the law's constitutional merits be considered. (Kavanaugh's
opinion starts on page 39 of the November 8, 2011 appeals court's
decision. Judge Kavanaugh wrote that the earliest a tax lawsuit could
be brought is 2015. The judge railed about the importance of not
undermining tax law with this case. On jurisdiction grounds for the
present, he vehemently refused to vote to throw the law out.)
Conservative judge Jeffrey Sutton (appointed by Bush II in 2001) also
ruled to uphold the ACA.
Yale Law School Professor Linda Greenhouse has opined that she
believes SCOTUS will uphold the law. She has not provided a nose
SCOTUS on Jan. 23, 2012 ruled unanimously that the police violated the
4th Amendment when they placed a Global Positioning System tracking
device on a suspect=92s car and monitored its movements for 28 days.
Scalia, Thomas, Sotomayor, Kennedy and Roberts took one stance.
Ginsburg, Breyer, Alito and Kagan took a somewhat different stance.
But all nine opined the use of GPS, without a warrant, here was
illegal. (The police had a warrant for ten days to use the GPS, but
the warrant had expired by the time the police placed the GPS.) Some
of the liberal commenters on the NY Times site are having conniptions,
incredulous at the lineup of the Justices.