Blog on the Run: Reloaded

Monday, August 15, 2011 7:31 pm

Affordable Care Act: SCOTUS, here we come

Five federal district courts have had the opportunity to address the constitutionality of the Affordable Care Act’s requirement that people buy health insurance. Three courts have ruled that it is constitutional, while two have ruled that it is not.

At the appeals level, a 6th Circuit panel has ruled in favor of constitutionality. Last week, a three-judge panel of the 11th Circuit ruled against it. What’s interesting, however, is that while the district judges have ruled along partisan lines, the appellate rulings have been more mixed, as Steven Benen observes: On the 6th Circuit, Bush 43 appointee Jeffrey Sutton voted to uphold the law, while on the 11th, a Clinton appointee, Frank Hull, voted with the majority against the mandate. (Reagan appointee Stanley Marcus dissents furiously, just to keep things interesting.)

So this puppy is headed to the Supreme Court, where a ruling against the mandate would be both the overturning of 70 years of case law and not all that surprising, given the predilection the Roberts Court has shown for legislating from the bench.

UPDATE: Fred points me to this dispatch by former Anthony Kennedy clerk Orin Kerr at SCOTUSblog, who boldly predicts the mandate eventually will be upheld, if the current Court personnel decide the case, by a vote of anywhere from 6-3 to 8-1, with only Clarence Thomas a lock against the constitutionality of the mandate. I think Kerr overestimates Roberts’s philosophical consistency, but were I forced at gunpoint to make the same prediction, I’d call for no worse than a 5-4 majority to uphold. The bottom line is that Justice Kennedy hasn’t gone crazy. Yet.


  1. I don’t think so but this guy did clerk for Justic Kennedy

    Comment by Fred Gregory — Monday, August 15, 2011 8:22 pm @ 8:22 pm

  2. […] OK, that’s not exactly what I said seven months ago, but it’s close: So this puppy is headed to the Supreme Court, where a ruling against the mandate would be both the […]

    Pingback by Is it too late for John Cole to file an amicus brief with the Supremes? « Blog on the Run: Reloaded — Thursday, March 29, 2012 12:25 am @ 12:25 am

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