I heard a bit of pessimism at last week’s Federalist Society National Lawyers Convention regarding the Obamacare challenges, namely that the Supreme Court would pass on hearing these initial challenges because the upcoming 2012 election may bring the immense political squabble behind Obamacare to a close. I did not share this pessimism, because in dealing with a circuit split (the 11th Circuit overturned Obamacare’s individual mandate and the 6th Circuit upheld it) there is ample proof that the legal question of how far the Commerce Clause goes is not merely a political invention. Indeed, one of the best parts of the convention was a debate between Paul Clement (former U.S. Solicitor General) and Professor Laurence Tribe (Harvard Law School), which covered nearly every controversial legal facet of Obamacare’s individual mandate. (I hope video of this debate is made available soon and, if so, will link to it. Update: the video is available here.)
Thankfully, two days after the convention closed, we have our answer. This morning, the Supreme Court agreed to hear the Florida challenge and has scheduled oral arguments in March.
I’m personally very excited about this despite the odds. And, indeed, the odds are long: while Reuters and the other news services are predictably hinging the decision on Justice Kennedy (the so-called “moderate” on the Court), it’s hardly that cut and dry. As I discussed a few months ago at our Key Liberty Votes event, the case law on the Commerce Clause shows that only Justice Thomas is almost guaranteed to rule against the individual mandate. Justices Kennedy and Scalia voted to uphold federal regulation of marijuana grown and consumed in California (without ever entering the stream of interstate, much less intrastate, commerce) in Gonzales v. Raich, and that was the last major Commerce Clause decision. This was before conservative Justices Roberts and Alito joined the bench, meaning their interpretation is anyone’s guess. Nevertheless, this decision will come in the wake of a years-long awakening to the dangers of unchecked federal power, and unlike decisions regarding marijuana, wheat, or guns in school zones, this decision will impact every single American. Either way, the liberty movement will be able to use the Court’s decision as an opportunity (see: “Kelo x 1,000”), not simply a win or a loss.
The short-term implications of this decision on Wyoming cannot be ignored: arguments, and certainly the Court’s decision, will not be until Wyoming’s 2012 Budget Session comes to a close. In the meantime, with the Constitutionality of Obamacare now a certified question, Wyoming should take a strong stand against implementing Obamacare exchanges. In addition to not working unless the state does the implementing, there is a chance that the entire law governing the exchanges’ federal aspects will be overturned. As for those who wish to be prepared for Obamacare being upheld, Wyoming should continue to pursue market reforms including opening Wyoming’s borders in the individual and small group health insurance markets and otherwise leading the way to market-driven health care. In addition to having time before Obamacare’s implementation, we have ample time to show the results of free market reforms. Unlike government programs—always demanding just a little more time, a lot more money, and ever more power—putting consumers in charge of their own health care will lead to responsiveness, efficiency, and keep power in the right place.
Update (2:00 p.m.): Many legal scholars are speculating about the time allocated to oral arguments (a whopping 5 1/2 hours). It’s worth checking out Orin Kerr at Volokh Conspiracy andmailto:Cato@Liberty.
Update #2 (3:00 p.m.): The Federalist Society has posted the debate from last Friday between Paul Clement and Laurence Tribe at YouTube.