Lawyer’s Perspective on Overturning Obamacare

I am not including last names to protect the privacy of the letter writer and the recipient.

This is my letter to Lowry re ObamaCare and the Constitution (and what ‘We the People’ can do if the Supreme Court upholds ObamaCare):

Mon 8/15/2011 12:48 PM


You have asked me the following questions:

“It is obvious that the healthcare provision requiring purchase of insurance will be tested in Supreme Court. I know that you told me it will not prevail due to precedent. Can the court ever over rule a precedent? If it is their opinion that earlier ruling was wrong, why can they not ignore it?? Has that ever happened?”

Here are my answers to your questions.

The Supreme Court does have the authority to overrule a case and reverse a prior decision. It takes a majority vote of the Supreme Court Justices to do this. The Supreme Court usually follows its own prior precedents but historically there have been some cases wherein the Supreme Court has overruled what a current majority of Justices now think is a bad precedent. Historically there have also been other cases where a majority of the Justices decide not to overrule a questionable precedent but instead to strictly limit that precedent so that it can only be applied to certain exceptional or unique circumstances.

As you know, I have been predicting that the Supreme Court will uphold the constitutionality of ObamaCare based upon the (bad) precedent of Wickard v. Filburn (1942). But this is only a prediction and even though I am skeptical that they will do so, I nevertheless still hope that my prediction is wrong and that a majority of the Justices will overrule Wickard v. Filburn and declare ObamaCare to be unconstitutional. By the way, I was predicting a 6-3 vote to uphold ObamaCare but now I am predicting a closer vote of 5-4 upholding ObamaCare.

I will give you a little more about my prediction in a moment but first let me remind you about a very important point. There are two ways to overrule a bad precedent set by the Supreme Court, to wit: (1) by a majority vote of the Justices of the Supreme Court; or (2) by a Constitutional Amendment. Historically, both of these methods have been used and, under the latter method (where the Constitution is amended in order to overrule a bad Supreme Court precedent), I can give you two quick examples off the top of my head (and maybe I could find even more examples if I were to research this issue), to wit:

· The Constitution stipulated that the jurisdiction of the federal courts extended to cases and controversies “between a state and citizens of another state,” but it did not establish whether a state could be sued without its permission. (Under the common law doctrine of “sovereign immunity,” a state or nation cannot be sued by a citizen without its permission.) In 1793, in the case of Chisholm v. Georgia, the Supreme Court rejected a sovereign immunity defense by the state of Georgia after it had been sued by a South Carolina merchant’s Estate over an unpaid bill that the merchant claimed was owed by Georgia for the purchase of certain war materials. So this decision went against the states. This resulted in extreme unhappiness and concern by Georgia and most of the other states. The result: Georgia and the other states persuaded enough members of Congress to propose the 11th Amendment, which was then sent to the states and finally ratified in 1795 by the required three-fourths supermajority of the states. The 11th Amendment therefore directly overruled the Supreme Court’s decision in Chisholm v. Georgia! (The 11th Amendment says: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”)

· In 1857, in the infamous case of Dred Scott v. Sanford, the Supreme Court held that no black person of African descent, including even freed blacks of African descent, could be a citizen of the United States and that federal action (as distinguished from state action) to change this was unconstitutional. The 13th and 14th Amendments were ratified in 1865 and 1868, respectively, and they directly overruled the Supreme Court’s Dred Scott decision.

As to my prediction concerning how the Supreme Court will vote on ObamaCare, I have this to say.

I think that “conventional wisdom” has it that once ObamaCare reaches the Supreme Court, the four reliable liberals — Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg — will find the individual mandate provision of ObamaCare to be constitutional. I agree! I think there are four sure votes on the Supreme Court to uphold ObamaCare.

The four most reliable conservatives — Justices Samuel Alito, Antonin Scalia, Clarence Thomas, and Chief Justice John Roberts — are expected by most people to vote to declare the individual mandate provision in ObamaCare to be unconstitutional.

If the conventional wisdom is right, therefore, the final ruling will hinge on Justice Anthony Kennedy’s vote.

But I think this conventional wisdom is wrong because it assumes that the Roberts Court’s five “judicial conservatives” are members of a monolithic bloc and that they will always vote together on important issues relevant to federalism and the constitutional powers (or lack thereof) of Congress. However, the conservative judges are often pulled in different directions by two competing attachments: to “originalism” and to “judicial restraint.” In constitutional cases that touch on questions of federalism (i.e., the place and authority of the states within the federal union), Justice Thomas has generally voted and reasoned as a committed originalist. Justices Scalia and Alito, and Chief Justice Roberts, however, have often appealed to judicial restraint to uphold acts of Congress that may be in tension with an originalist reading of the Constitution. And one or more of these three judicial conservatives may well do the same with regard to ObamaCare.

Personally, I am predicting that there will be a great surprise for the nation because I think that Chief Justice Roberts will shock the country by voting with the four liberals to uphold the constitutionality of ObamaCare! I base this not on his written opinions but rather on how he testified to the Senate during his confirmation hearings (he said he would give strong value to prior precedents and that he may not overturn a questionable precedent where it has been relied on for many years…and this fits Wickard v. Filburn to a tee), plus on a comment I heard him make on a recent television documentary about the Supreme Court (he said that the Supreme Court has the final word and that if people don’t like a decision by the Supreme Court, then that’s just too bad…implicitly stating that there is nothing that can be done by “We the People” to overturn a bad Supreme Court decision).

On the other hand, I now think that Justice Kennedy will vote with the conservatives. I base this prediction upon having reviewed some of his prior decisions respecting federalism. In particular, I am thrilled to have read what he wrote very recently (in June of 2011) in the case of Bond v. United States, wherein he stated:

· “Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. . . . Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. . . . By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake. . . . The limitations that federalism entails are not therefore a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. . . . An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate.”

The bottom line is that although I hope I am wrong, I am predicting that the U.S. Supreme Court will uphold the constitutionality of ObamaCare by a 5-4 vote under the authority of its prior (bad) precedent established in the case of Wickard v. Filburn, with the vote broken down as follows:

· these five Justices will vote to uphold ObamaCare, to wit: Chief Justice John Roberts, Justice Stephen Breyer, Justice Sonia Sotomayor, Justice Elena Kagan, and Justice Ruth Bader Ginsburg; and

· these four Justices will vote to limit Wickard v. Filburn and to overturn ObamaCare as being unconstitutional, to wit: Justice Clarence Thomas, Justice Samuel Alito, Justice Antonin Scalia, and Justice Anthony Kennedy.

I hope I’m wrong but, if not, just remember that an unpopular Supreme Court decision can be reversed in accordance with our laws by a constitutional amendment duly ratified by the required supermajority of three-fourths of the states. This doesn’t happen often, but it has happened before.



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