The Affordable Health Care Act
Our first topic asks the Community to discuss what the Supreme Court should do in the health care cases. We ask what the Justices “should” – as opposed to “will” – do to encourage you to discuss the issues related to the cases not in terms of predicting the outcome, but of first principles. You’ll see that we have a thread on what the outcome will be; we just don’t want that to be the focus.
For example, if you believe that the Court’s jurisprudence interpreting the Commerce Clause is misguided – presumably because it gives Congress too much authority – you should feel free to advance that view. Alternatively, defend the Court’s existing decisions. But don’t merely revert to saying that it “should” uphold the law because that result is dictated by existing precedent. And of course, you can feel free to say that existing precedent does not save the statute, which is what the Eleventh Circuit held.
Other issues are fair game too. For example, relatively little attention has been given (outside of the Fourth Circuit’s decision) to the question whether these suits are being brought too early (in light of the Anti-Injunction Act and Tax Injunction Act) or by the wrong parties (the question of standing). Also worthy of discussion is which of the cases the Justices should hear (for example, the Sixth or Eleventh Circuit case or one of the others) and whether the Court should grant cert. at all.
If you’re a lawyer, feel free to bring to bear all manner of legal arguments. If you’re into history, add that perspective. If you’re a lay person, give us your sense of how the Court should rule.
But keep in mind that an essential part of the issue for discussion is what “the Supreme Court” should do. This isn’t a debate about whether the law is good or bad – a point that likely will play little role in the cases – or whether the Obama Administration, Democrats, or Republicans are evil, socialists, obstructionists, or the greatest thing since sliced bread. If you make comments like that, we’re going to delete them, so don’t waste your time.
Full disclosure: If the Supreme Court grants certiorari, the Goldstein & Russell firm will be representing AARP in an amicus brief on the merits. But as always, the blog takes no position on the cases. And our moderation of the comments won’t have anything to do with whether you think the statute is constitutional, so long as the comments are on point.