POLITICAL observations & opinions

* the uncertain legal path of the Healthcare law after the Florida decision

Posted by Lew Weinstein on February 1, 2011



David Nather reports for Politico (2/1/11) …

  • Monday’s federal court decision striking down the Democrats health care reform law is just Act I in a long legal drama — and nobody knows how it will end.
  • At stake is the biggest social legislation in a generation, and the defining achievement of Obama’s presidency.
  • But the legal challenges will also determine whether the federal government can make people buy health insurance and whether it can prevail over the opposition of 26 states.

“This case could define federalism for the next 100 years,”

said Jonathan Turley, a constitutional law professor

at George Washington University.

  • Chief Justice John Roberts “does not believe the Commerce Clause allows you to do everything and anything,” but he’s not “an adventurer” and therefore might not go so far as to strike down the mandate, according to Charles Fried, a former solicitor general under President Ronald Reagan who testified at Roberts’ confirmation hearings in 2005.
  • “I think there’s a good chance it will be a 6-3 decision in favor of constitutionality,” said Fried, who voted for Barack Obama in 2008.
  • A high court ruling that overturned the mandate, Fried said, “would be viewed as a highly partisan, highly political act.”
  • Conservative legal scholars say it’s not hard to see a scenario where the Roberts court declares that the Obama administration has taken the Commerce Clause too far.
  • Judge Roger Vinson ruled that the mandate is so central to the rest of the law that it can’t be overturned by itself.
  • Vinson’s ruling was the strongest legal blow to the law yet. But it wasn’t a total surprise to anyone who has followed his legal questions or his politics closely.
  • Now, the lawsuit filed by 26 states moves into more mixed ideological territory. The appeal will go to the 11th Circuit Court of Appeals, which is considered middle-of-the-road and “within the mainstream of the federal circuits,” according to Michael Carvin, a constitutional law expert at the law firm Jones Day.
  • It would be heard by a three-judge panel, and then probably by the full appeals court.
  • “There are two decisions the appellate panel will have to make. One, is the mandate unconstitutional? Two, what do we do with the rest of the law?” Carvin said. “You can agree with this judge on the first question without agreeing with him on the second.”
  • Ultimately, the Supreme Court will have to decide those questions too – probably by the closest of margins. And whichever way the court goes, it can be almost sure that a substantial portion of the country – those who support the law or those who want to fight it to the bitter end – will not accept the decision.

“Until a judge appointed by a Democratic president strikes it down,

or a judge appointed by a Republican president upholds it,

nobody’s views about this are going to change,”

said Mark Tushnet, a law professor at Harvard University.


read the entire article at … http://www.politico.com/news/stories/0111/48563.html


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