NPR logo Could Supreme Court Kill Health Law? Maybe: Expert

Could Supreme Court Kill Health Law? Maybe: Expert

Clarence Thomas, Antonin Scalia, John G. Roberts, Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, St

U.S. Supreme Court justice in a group portrait, Oct. 8, 2010.  Pablo Martinez Monsivais/AP hide caption

toggle caption Pablo Martinez Monsivais/AP

Many experts have predicted that the health-care overhaul law, formally known as the Affordable Care Act, will likely withstand constitutional challenge.

The Supreme Court has repeatedly held, they argue, that the U.S. Constitution's Commerce Clause gives Congress broad powers in regulating the action of individuals within the economy. Therefore they expect the mandate that individuals purchase health insurance coverage or face fines will pass constitutional muster.

But high court expert Stuart Taylor, who writes for National Journal and Newsweek, isn't so sure.

In a Kaiser Health News column in which he notes a tendency for federal judges to make party-line decisions, he makes a case for why Supreme Court watchers should be more circumspect about what the high court will do when it takes up the states' challenges to the new law in either 2012 or 2013, he says.

One issue is that there are precedents going both ways, so a court majority could take either side and claim it was following precedent.

Another point is the novel use of the Commerce Clause to order people to buy something many likely wouldn't otherwise, Taylor writes.

An excerpt:

With no clear guidance from the precedents, the outcome is likely to turn less on legalities than on the justices’ views of whether the new law is good or bad for the country and whether – even if they think it’s bad, as I suspect Roberts does – they should second-guess the elected branches on the most important new legislation in decades.

The latter calculation might well turn partly on how striking down the new health care law would play in Peoria. If majorities of the public and Congress are clamoring for repeal when the justices are mulling the issue – probably in 2012 or 2013 — the conservatives could strike it down without fear of a big public backlash.

That's certainly a possibility given the court's current make-up. Taylor's point is well taken: it almost always pays to be skeptical about the conventional wisdom, in this case, that the outcome is a foregone conclusion.

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