The Supreme Court and ObamaCare: a Post-Script

By Dave Andrusko

After three sets of intense oral arguments this week, supporters of ObamaCare profess to be deeply worried. This consternation is often bracketed by a truth adhered to by all Supreme Court watchers: don’t make too much of what the Justices say in oral arguments. They could be signaling where they are already heading, they may be playing devil’s advocate, or it could be some combination.

This is simply to say that whatever inklings people think they saw from the Justices—to strike the entire law, parts of it, or leave it alone– we won’t know how far the Court will go until at least June. And while it seemed largely pro-forma, the first day’s questioning did ask whether the Court could or should be handing down a decision in the first place.  Does the 1867 “Anti-Injunction Act” mean no one can file a lawsuit to challenge the “individual mandate” before it actually goes into effect in 2014 and those who do not purchase health insurance pay a penalty in 2015?

The early consensus was whatever the Justices decide, they will not be impeded by a 19th century statute with questionable relevance.

Days two and three were inseparable. If the “heart” of ObamaCare—the individual mandate (aka the “minimum coverage provision”)—is ruled unconstitutional (the focus of Tuesday’s oral arguments), what other provisions of this massive 2,700 page bill must fall as well (Wednesday’s subject)?

For panicky supporters, the lawyers for the government fared poorly, not because the law was defective, but because of their own inadequacies. For ebullient opponents, they saw these lawyers as being saddled with defending a law that is almost obviously unconstitutional and whose defects and internal contradictions several of the Justices exposed with almost clinical precision.

With no one knowing for sure how the High Court will rule—only that it will come down as the presidential contest is growing more heated– there has a flood of speculation what the political impact will be. And it’s just beginning.

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