Posted by David Bernstein: Small Contribution to the Debate Over the Constituitonality of Mandatory Health Insurance: http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253545816
My small contribution is that the Supreme Court would be much more likely to invalidate elements of Obamacare on which there is no firm, direct precedent if the Republicans sweep the 2010 midterm elections than if they don't. In my view, it's no coincidence that[1] Lopez, the first case to invalidate the a federal law on commerce grounds since the 1930s, came after the Republican sweep in 1994, and no coincidence that Raich backtracked on federalism at a time when neither the incumbent Republicans nor certainly the Democrats were spending any political capital on either limited government in general or federalism specifically, and indeed, when these issues seemed passe. The Supreme Court, institutionally, does not like to be exposed on controversial issues without any support from the political branches. The most ideological Justices (e.g., Thomas) may not care, but the swing voters do. So one thing I think we can be pretty sure of: if the Democrats still control the House and Senate in 2011, any constitutional challenge to health care reform will go nowhere. References 1. file://localhost/var/www/powerblogs/volokh/posts/1253545816.html _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
