Compelling as that objection is, the fact that a conservative justice upheld the mandate on constitutional grounds suggests that, even with a conservative majority on the Supreme Court, a defeat of the mandate and, of ObamaCare with it, is far from certain. There are also questions about the propriety of Justice Elena Kagan taking part in the hearings. As a solicitor general in 2010, Kagan wrote emails delighting over ObamaCare’s passage, famously exulting that it was “simply amazing” that the bill had passed. She may also have helped the administration mount a defense of the law. Citing that conflict of interest, ObamaCare’s foes would like to see Justice Kagan recuse herself from the hearings.
Those hoping for a quick decision from the court, meanwhile, are likely to be disappointed. In agreeing to hear the case, the Supreme Court left open the possibility that it could defer judgment about any challenges to ObamaCare until 2014, when the universal mandate goes into effect. If the court decides to defer its ruling, there would be no way to strike down ObamaCare in the immediate future.
While that could be a setback for ObamaCare’s many opponents, there is also a possibility of a comprehensive defeat of the law. The Obama administration has argued that most of the law’s provisions are not tied to the individual mandate and should be allowed to stand even if the mandate is found unconstitutional. The Supreme Court however has agreed to hear arguments on whether the rest of the legislation should be voided along with the mandate. It could yet be the case that all of ObamaCare, and not just the individual mandate, will be on trial.
Given the Obama administration’s notable lack of domestic policy achievements, the reversal of its one major legislative victory would be disastrous. And while such a ruling likely won’t come any time soon, the Supreme Court’s willingness to hear the challenges to ObamaCare ensures that, if nothing else, there will be a healthy debate about the proper limits of government power. That alone wouldn’t bode well for ObamaCare.
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