Obamacare and the Supreme Court

Update: if you're looking for good (nerdy) info - SCOTUS Blog is a good place to start: http://www.scotusblog.com/
They have audio and transcript from oral argument, which began today.

A big news story today is the second anniversary of the signing of Obamacare, or the Affordable Care Act. Obviously there was vigorous debate, and many people disagree with the individual mandate. And what do people in our country do when we don't like something? Sue!

Regardless of your (or my) opinion, as a lawyer, I'm really excited for oral argument to take place, but my reasons actually have almost nothing to do with the law itself, but rather a certain constitutional law question that the Supreme Court justices seem determined to not give us a straight answer to.

According to the Constitution (and not the one that says that Obama is not a citizen, or any "constitution" that a tea party fanatic likes to cite, because they are almost always wrong), Congress is allowed to pass laws that regulate "interstate commerce." And after all this time, we still do not know what the heck that means. On the one hand, medical marijuana sold only in California affects interstate commerce, on the other hand, the presence of guns near schools, or physical violence against women, doesn't. And the basis for the healthcare law is this commerce clause. So it will give the justices another opportunity to set forth clear rules about what exactly Congress can and cannot regulate. Historically the courts have struggled with the question of how much can Congress regulate, and how much it should save for the states to decide. As much as that is a political question, it is also very much a constitutional, interpretive and scholarly question that many of us law types get excited about.

You should also keep in mind that whenever the Supreme Court hears a case, they have the right and the opportunity to create new law. Of course that is discouraged politically, but justices on both sides of the aisle do it, and sometimes it is simply necessary, because the older rules simply don't work in today's society. So as much as people can make informed predictions, and as much as the parties can cite precedent, 5 people can agree to do what they want.

The irony is, after all of this hype, the court might not even get to the constitutional question because of the Anti-Injunction Act, which, if applied to this case, would mean that the insurance mandate would have to take effect before anyone can sue under it, and it would delay the ultimate question until 2014. Stay tuned!

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