Taking a Pass on Obamacare

    Following the passage of the Patient Protection and Affordable Care Act in 2010, opponents of what has been commonly referred to as Obamacare and the individual health insurance mandate began waging legal challenges against what has been President Obama's most notable domestic policy initiative. Nearly 30 states have jointly filed lawsuits claiming that Obamacare is unconstitutional because they believe that having the federal government compel citizens to purchase health insurance is not justified under the interstate commerce clause. Many supporters of Obamacare, including prominent legal scholars like Laurence Tribe, Akhil Amar, and Erwin Chemerinsky, believe that its constitutionality is doubtless.

    However, the lawsuits persist and opponents of Obamacare scored a notable victory when the 11^th Circuit Court of Appeals upheld a lower court's ruling against Obamacare. Their ruling conflicts with the 6^th Circuit Court ruling, and the Supreme Court awaits. The high court should, if it can, take a pass on this one.

    The arguments against the individual mandate basically center around the idea that the individual mandate is not a necessary and proper measure for the regulation of the health insurance industry because such a broad reading of the interstate commerce clause would grant too much power to the U.S. Congress and jeopardize the notion of our government as one of enumerated powers. Supporters of the individual mandate say that such an objection is rubbish and that the individual mandate is necessary and proper for the broader regulatory goal of making everyone eligible for health insurance independent of medical history. Neither side is decisively correct.

    Then what should the court do? It could defer to the determination of the legislative branch and implicitly accept that Obamacare is constitutional; many believe that the court will take such a route. However, expanding the power of the federal government (if it is an expansion) in such a way will stink in the nostrils of the conservative bloc who may wish to revisit the issue at a later date or assert the court's authority to prevent federal overreach in the name of social welfare; they may not be eager to overturn Obamacare, but what about the next legal conflict between economic autonomy and the regulatory powers of Congress?

    If the Supreme Court could punt the issue away on narrower legal grounds or some technicality then it could save itself a huge headache in the 2012 session. They could conjure an argument that questions whether or not state attorney generals and conservative legal groups have legal standing; they could point out that the individual mandate does not take effect until around 2014; they could ask if there have been any legal damages that would warrant such lawsuits; they could simply say that they would rather revisit the issue at a later date (although that is unlikely because that would be conceding fallibility) and promise to expedite similar lawsuits that are filed after a certain point. Such a tact essentially amounts to upholding Obamacare if only temporarily.

     After all, Republicans are poised to take both houses of Congress following the 2012 election and have a better than even chance of capturing the White House. A Republican administration with any of the current frontrunners at the helm will more than likely overturn Obamacare and replace it with something else which would make the lawsuits a moot point. Alternatively, if President Obama is reelected and Obamacare doesn't get axed then voters will have more of a chance to evaluate if Obamacare is effective and desirable in action and not just in theory; in that case, there may be little demand for the court to overturn the law and the high court can comfortably uphold it. The legislative process can spare the Supreme Court some grief.

     And what grief it would be! Any decision will create a storm of controversy that would further politicize the Supreme Court and possibly put the court front and center on the stage of a presidential election. On the other hand, allowing the issue to ripen before judicial intervention would be palatable for many Americans even if it does resemble a political calculation because it is a calculation that reflects judicial modesty. Lawyers, legal activists, and some legislators may find the lack of resolution and direction on commerce clause jurisprudence from the high court undesirable, but the electorate doesn't care about legal purity. They want something that works.