Posted by David Bernstein:
Small Contribution to the Debate Over the Constituitonality of Mandatory Health 

   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.


   1. file://localhost/var/www/powerblogs/volokh/posts/1253545816.html

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