How Obamacare Will Be Settled: A Primer on the Commerce Clause

[MindMover]

Amid rampant speculation over the fate of Obamacare in the Supreme Court, a critical question has been missed: How will the justices decide whether to uphold or strike the individual mandate?

The case the Supreme Court will hear is an appeal of an Eleventh Circuit decision holding the individual mandate unconstitutional under both the Commerce Clause and the Taxing and Spending Clause of the Constitution. The only potential positive for Obamacare in the ruling was the finding that the mandate is "severable." Severability would allow the rest of Obamacare to stand even if the mandate falls.

To date, four of 13 circuit courts have ruled on the individual mandate. The Sixth Circuit and D.C. Circuit upheld the individual mandate under the Commerce Clause. The Fourth Circuit dismissed a case on the rationale that the mandate's penalty for not buying insurance is a tax. Under the Anti-Injunction Act, taxpayers cannot challenge a tax before it goes into effect. Only the Eleventh Circuit found the mandate unconstitutional under the Commerce Clause.

The Court's roughly 75-percent rate of reversing lower courts seems promising for the U.S. in the abstract. Circuit-by-circuit data suggest the potential to determine how in-step a circuit's judges are with the Court on average -- and thus the likelihood the Court will reverse a circuit's case.

http://www.theatlantic.com/health/archive/2012/03/how-obamacare-will-be-settled-a-primer-on-the-commerce-clause/254872/

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[geek tragedy]

1. The case was decided months ago. And it had nothing to do with the Commerce Clause.

It was decided when Alito was confirmed.

[MindMover]

2. No doubt he will vote in favor of the states, so what.....?