Supreme Court upholds Obamacare!

Supreme Court

This month the Supreme Court will finally decide on whether Obamacare is constitutional. There has been a lot – and I mean A LOT – of debate in the media about what this law means for America, and whether it is going away. But very little of the debate has had anything to do with what the law is about (the commerce clause) and what the Supremes have decided before on that issue (its precedent).

Everyone has his or her own thoughts on the topic, including me. So before the actual decision is announced, I wanted to put my thoughts down on paper. So here goes:

The Affordable Healthcare Act will be up-held 5 to 3 with Scalia, Alito, and Thomas dissenting (Justice Kagan recused herself).

At the center of the issue is the Commerce Clause that gives Congress the power to regulate commerce as between the states. From the 1820s to the 1930s, the Court interpreted the clause very narrowly: If the law at issue didn’t directly affect interstate commerce, the Court struck it down.

Then, in the 1930s, came the New Deal. The New Deal was far-reaching legislation that affected almost every American and affected almost every industry in America (banking, farming, steel). The Court, realizing times had changed since it’s last decision on the Commerce Clause, eventually began to apply the Commerce Clause broadly, essentially stating that if the law had anything to do with commerce, it would be upheld.

Now we come to Obamacare. I believe the media is asking the wrong question. The media asks “Will the Court uphold the law?” when the question is really “Will the Court reverse the sum of its decisions since the 1930s?” In order for the Court to strike down the law, it has to reverse its precedent for the past 80 years or so. Keep in mind the Court has upheld laws that have had less of an impact on interstate commerce than the Affordable Healthcare Act.