Will The Courts Overturn the Health Care Bill- Not Likely But......

Respected Lawyer and legal blogger Orin Kerr is not optimistic at all. See What Are the Chances that the Courts Will Strike Down the Individual Mandate?

I agree with what of what he says but I am a tad more optimistic than he is that AT LEAST the Supreme Court will hear it.

The major underlying issue is the Commerce Clause. The Commerce Clause (the power to regulate interstate commerce) is how Congress has the power to do about everything they do.

This power was interpreted by the Courts in the FDR years in quite an expansive way and we saw another burst of growth when the Congress had to use this provision to pass civil rights legalisation.

There was some belief that Court was indicating it would look at seeing the Commerce Claus Ina more restrictive nature in the mid 90's but in the end the court did no meaningful restrictions on the grant of power.

So will the Court hear it? I think so. As to the Commerce Clause we are now at the end of the road!!! as to the scope of commerce power. If the Commerce Clause can cover this then lets face it the power Congress is almost unlimited in many ways.

I have a hard time thinking many of the Justices are not going to let this pass without looking at it. If they pass on it it will be in many ways a tacit endorsement of it because the Health Care Bill Law will be just to entwined in American life to overturn.

Would the Supreme Court overturn it. In this case we would be looking at the Conservative 5 (if they were all on the Court when it got to them).

I don't know. I think in many ways it is unlikely but there is a chance. I think there is a more of a chance than Kerr thinks.

There has been a lot of talk about how the Conservative Judges on the Court are judicial activists and really not "conservatives"recently. This is nonsense. People say this when on the rare occasions that the Court overturns Federal Laws. The Conservatives are still VERY VERY deferential to Congressional power even when it is apparent they have huge misgivings.

Still this huge. Further the Court does listen to the public but not in the way people think. In another post this observation was made at Is the tax power infinite?

Americans today are not bound to meekly accept the most far-ranging assertions of congressional power based on large extrapolations from Supreme Court cases that themselves come from a short period (the late 1930s and early 1940s) when the Court was more supine and submissive to claims about centralized power than was any other Supreme Court before or after in our history. American citizens, in the political process and in their personal lives, will ultimately have the final word on the Constitution.

A large and permanent majority of the American people immediately accepted Social Security as a constitutional solution to poverty among the elderly and to massive unemployment (since Social Security would open up jobs by encouraging people to retire sooner). The American people have not accepted Obamacare as a constitutional solution to health insurance problems. If the American believe that there is a “crisis” about the high cost of health insurance, then the American people can also believe that the solution is not to punish people for refusing to buy overpriced insurance that they don’t want. The American people can reject the notion that our Constitution should be contorted and distorted to accommodate such a destructive and intrusive scheme.

I really think the Court in the way is taking the temperature of the American public on the above a good bit. I think this happened in the big desegregation case Brown vs the Board of Education and to some extent happened on the recent landmark gun right cases.

So that might come into play also. The Courts are invested and are aware (more than Congress is often) that the public must respect the laws and feel they have a personal stake in the Constitution. They realize the danger to American society and government if that is lost. So if the public angst is still at a high level then that will come into play. If the public seems to have accepted it then that comes into play too.