SCOTUSOLC Board Member Jack Painter and OLC liaison for Liberty Alliance Cincinnati, recently spoke about the Supreme Court Case over the Patient Protection and Affordable Care Act, more commonly known as “Obamacare”.  This is the final part of a three part series which summarizes a number of observations and points from Jack’s speech.  We think you will find both insightful and helpful in understanding the Supreme Court case, hearings, and his predictions on what the court will decide.

Final Observations

  • I think the odds are that the Supreme Court will strike down the individual mandate as unconstitutional. It seems clear that Justice’s Alito and Scalia will vote that way. I assume that’s true of Justice Thomas as well. It’s less clear with Justices Roberts and Kennedy, but my guess is they will do the same. That would mean at least a 5-4 decision to strike down the law.
  • My sense is that all the so-called “liberal” Justices will vote to uphold the law. Based on their questions, they seem to believe the failure to purchase health insurance constitutes interstate commerce. They also don’t seem alarmed by the possibility the government can force us to purchase other products.
  • If the Court decides the individual mandate is unconstitutional, one of three things can happen:
    • The Justices can strike down only the individual mandate.
    • They can strike down the individual mandate and other parts of the law.
    • They can strike down the entire law.
  • I think it’s likely they will strike down just the individual mandate or strike down the entire law. Otherwise, they will have to analyze the 2,700 page bill and pick and choose the provisions to keep. Justice Scalia joked that requiring them to do that would be cruel and unusual punishment in violation of the Eighth Amendment!
  • If the Court upholds the individual mandate, it will be up to Congress to decide whether to leave it in place. Since it is so unpopular, I would expect it to be repealed eventually, which would presumably require a major overhaul or repeal of the whole law. It is possible pressure will build to repeal the entire law when its costs and intrusions become more evident.
  • Given the possibilities, it is critical to defeat President Obama and help the Republicans keep the House and take control of the Senate this November so they can enact genuine health care reform that achieves many of the same goals without sacrificing our freedom. Paul Ryan’s healthcare proposals are designed to do that.
  • In the meantime, I would urge people to support the Interstate Health Care Compact under consideration in Ohio and the efforts to keep Ohio from setting up state exchanges under the Affordable Care Act.

Overall, I’m optimistic that, one way or another, we’ll win this fight and preserve our freedom.


The first two articles in this series can be found here:

  1. What Happened at the Supreme Court Obamacare Hearing, Part 1 of 3
  2. What Happened at the Supreme Court Obamacare Hearing, Part 2 of 3

Jack Painter lives in Cincinnati and is a corporate lawyer in private practice. He founded Liberty Alliance Cincinnati and is on the board of the Ohio Liberty Coalition.