Georgetown Law Professor Randy Barnett, who has been a leading legal critic of the national health care law, said today's ruling against the individual mandate changes the dynamics of the effort to overturn the legislation.
“This was a huge day," Barnett told me in a phone interview. "The government needed to run the table on all of these cases to survive, and it failed. It basically needed all the judges to say it was constitutional, and as soon as they had one that said it wasn’t, then we have a different game.”
First, he said, "It changes the posture, because now this will go to the Court of Appeals, and the Court of Appeals is going to have to reverse this judge.”
But in the more immediate term, it will impact a similar suit against ObamaCare brought by 20 states led by Florida, he predicted. U.S. District Court Judge Roger Vinson, of the Northern District of Florida, is scheduled to hear arguments on Thursday.
Barnett explained that had today's decision gone the other way, the Obama administration would have been able to argue that three judges had upheld the law, but now the state of Florida can point to a case in which the law was ruled unconstitutional.
The ruling also gives more cover to Vinson. “Judge Vinson now is not going to be standing alone against Congress if he should decide it’s unconstitutional,” Barnett said.
Going forward, Barnett said, if one of the appeals' courts decides that the law in unconstitional, it's almost garunteed to go to the Supreme Court. If the law is upheld in appeal, then it would take four Supreme Court justices who want to weigh in on the issue to bring it before the court, which he believes is likely anyway.
But he doesn't expect the Supreme Court to weigh in on an expidited basis, bypassing the appeals' courts. He said as a case moves up the food chain, the quality of the arguments and analysis improves, so the Supreme Court tends to wait until wait for the appeals' court to have its say so that the case is more fully formed by the time it reaches the highest court. “I’d be surprised if they want to jump the gun on this," he said.
Barnett also emphasized that in his preliminary ruling on the Florida case, Vinson rejected the argument that Congress had the constitutional authority to impose a mandate under its taxing power. That argument was also rejected by Judge Henry Hudson in his decision today.
“Basically, every court has rejected the tax power argument," Barnett said. "I never thought that argument was going anywhere, and it hasn’t gone anywhere. This is another sign that this thing is going to have to rise or fall on the Commerce Clause and Necessary and Proper Clause. And the tax power thing is going to be gone.”
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