In my January op-ed, “Mandatory Insurance Could be Unconstitutional,” I raised constitutional concerns with the health care legislation approved by the U.S. House last night.
My final prognostication is that the U. S. Supreme Court will rule the mandate unconstitutional on a 5 to 4 vote, arguing that the Commerce Clause and 16th Amendment can’t be used to support such a unique radical departure. Whoever loses at first in the federal District court will appeal the decision to the Appellate court, the loser then appealing it to the Supreme Court, which will grant cert to hear the case (takes only four votes to grant cert).
So even if the fat lady seemed to start singing on Sunday with a Democrat victory, she still has not commenced her final aria.
One other matter enters into this: For a case to be heard by the District court, that case must be “ripe” and have “standing” – that is, there must be “harm” or “imminent harm” to an individual. Democrats might argue here that since the mandate doesn’t kick in until 2014, the case will not be ripe or have standing until then. But since the harm is locked in at the time of passage of Obamacare, I believe the courts will recognize this, ruling both ripeness and standing upon passage.
Now if the individual mandate is found unconstitutional, Obamacare will likely collapse from its own weight: the risk pool of funds will not be there to finance an additional 32 million health insurance policies. And there might not be even enough funds to finance coverage of pre-existing conditions, unless insurance companies raise rates into the stratosphere.
So if Obamacare fails, Matthew Arnold’s observation about the poet Shelley is applicable: Obama is “a beautiful and ineffectual angel beating in the void his luminous wings in vain.”
– Dr. Ronald Trowbridge, TPPF Visiting Research Fellow, served as chief of staff to the late U.S. Supreme Court Chief Justice Warren Burger and to the Commission on the Bicentennial of the U.S. Constitution.