April 7, 2012

172 words 1 min read

Obama, Obamacare and the Supreme Court

First, my prediction:

  1. Is Obamacare a tax? (8-1 Against)

Technically speaking, if Obamacare is a tax, it could be non-justiciable until implementation. However, judicial precedence suggests the courts may review a tax before its implementation in certain circumstances. The Government did not even want to argue that Obamacare was a tax, so the Supreme Court (SCOTUS) appointed a separate attorney to make the argument. The only SCOTUS justice that appeared to entertain this line was Justice Breyer.

  1. Is the mandate unconstitutional? (5-4 For)

  2. Is the mandate severable? (7-2 Against)


It is not judicial restraint to accept an unsound, narrow argument just so the Court can avoid another argument with broader implications. Indeed, a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling.

We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.