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  • Justices Take Next Step in Deciding Obamacare's Fate

    The morning news cycle has been buzzing with anticipation as the Supreme Court meets for its first conference after the Obamcare oral arguments, and some are reporting that the justices “will likely know the outcome of the historic health care case by the time they go home this weekend.” In fact, Obamcare won’t be the only topic of discussion today, and the justices’ decision process on Obamacare will likely continue for months.

    During conference, the justices vote on cases that have already been argued, but they also discuss whether to grant or deny new petitions for certiorari.  On deck for today’s conference are 162 cert. petitions, most of which the Court will deny but the Court may grant some or hold them over for further consideration at the next conference.  There are also 29 cases that have been argued this term that the Court has not yet released a decision, so some of those could potentially be up for consideration.

    When the justices cast a preliminary vote for Obamcare today, that won’t be the end of discussion.  A justice on the fence could change his or her vote up until right before the decision is released to the public—and in this case Court watchers expect the decision will be handed down the last day of this term, likely in the last week of June.  As for the process of conference and voting, no one other than the justices is allowed in during conference.  Chief Justice John Roberts speaks first and then the other justices cast their votes in order of seniority, which is goes as follows: Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan.  If the Chief Justice votes with the majority (meaning at least 4 other justices agree with him), then he assigns the author of the majority opinion and may assign it to himself.  But if the Chief Justice is in the minority, the most senior associate justice of the majority vote assigns the author.  Thus, if the “liberal” wing prevails in the initial vote on ObamaCare, Justice Ginsburg will presumably decide who will author the opinion—a newfound role since the retirement of Justice John Paul Stevens.

    The conference is not run like a congressional hearing—the justices do not blather on but rather simply state their vote and sometimes briefly indicate why.  The real debate of the details will happen over the course of late spring and early summer, when the justices will circulate drafts of the majority and any dissenting or concurring opinions.  It is possible that what was intended to be the majority opinion will become a dissent or concurrence because enough justices have been persuaded by a draft opinion to change their votes.  As Legal Analyst Jan Crawford has described, following Justice Thomas’s first conference back in 1990, he was able to sway three justices to change their votes when he drafted a dissent in a case that would have otherwise been decided 8-0.

    The justices are steadfast in maintaining the secrecy of conference until the decision has been released to the public.  So while today’s conference is an important day, we’ll have to wait until June to learn the Supreme Court’s decision. But Congress shouldn’t wait for the Court to save it from its own misdeeds. Congress should repeal Obamcare now.

    Posted in Obamacare [slideshow_deploy]

    10 Responses to Justices Take Next Step in Deciding Obamacare's Fate

    1. Chuck Ness says:

      It is my hopes and prayers to God, that the honorable Justice Clarence Thomas is given the call to write the decision should the majority rule to toss Obamacare in toto. If my prayer is granted, I do believe that many on the left will be beside themselves as their heads spin while spewing pea soup across the room. I say so because his decision could very well be one that vastly many advancements made by those who would turn this great Republic into a Marxist Socialist state.

    2. JRH says:

      So will Sotomayor or Kagan respect the secrecy of the Supreme Court Conference, or will they leak the information to Obama operatives so that they can mount a media campaign to attempt to sway public opinon before the June decision announcement?????

    3. sim bankston says:

      How can a court and a government that outlaws discrimination allow large groups to opt out of a mandated law. That amounts to discrimination to the rest of us who are forced to purchase a product we don't want

    4. Douglas Brock says:

      Chuck Ness; AMEN my friend AMEN!!

    5. RepealThe16thA says:

      Surprise! The USSC has previously decided the constitutionality of federal healthcare.

      More specifically, what the mainstream media isn’t telling people about Obamacare is the following. Previous generations of justices have already clarified that public healthcare is a state power issue. This is evidenced by the terms "health laws" and "medical practice" in the following excerpts from case opinions. Note that some of the excerpts address healthcare laws and reflect the limits of Congress's Commerce Clause powers in a single sentence.

      "State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress." –Justice John Marshall, Gibbons v. Ogden, 1824.
      Note that Justice Barbour referenced the above excerpt in New York v. Miln, expanding it as follows.
      "Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state and those which respect turnpike roads, ferries, &c., are component parts of this mass." –Justice Barbour, New York v. Miln, 1837.
      And before Constitution-ignoring socialist FDR nuked the Supreme Court with activist justices, Constitution-respecting justices had reflected on the excerpts above by clarifying in Linder v. United States that the states have never granted Congress the constitutional authority to stick its big nose into intrastate medical practice.
      “Direct control of medical practice in the states is obviously beyond the power of Congress.” –Linder v. United States, 1925.

      And for the icing on the cake concerning not only unconstitutional federal Obamacare, but also constitutionally unauthorized federal spending beyond healthcare issues, Justice John Marshall had clarified in general that Congress is prohibited from laying taxes in the name of state power issues.

      "Congress is not empowered to tax for those purposes which are within the exclusive province of the States." –Justice John Marshall, Gibbons v. Ogden, 1824.

      Finally, given that the Court has already clarified that healthcare is a state power issue, individual states free to experiment with their own healthcare programs, the real reason that the constitutionality of Obamacare is now being challenged is the following. The 111th Congress wrongly ignored Article V of the Constitution which requires Congress to first successfully petition the states to ratify a proposed amendment to the Constitution which would have granted Congress specific new power, the power to regulate public healthcare in this case, before establishing Obamacare.  And Congress has been wrongly ignoring its constitutionally limited powers and Article V since FDR was president; Article V is arguably the best kept secret of the unconstitutionally big federal government.

    6. West Texan says:

      Social Security and Medicare already exceeded the envelope of limited federal powers decades ago. The Supreme Court will simply finalize the death of federalism, not SCOTUS' bastardized version, if they allow any part of the misnomered "Affordable Care Act" to remain. The socialist wannabes can add another subversive victory to their purposeful destruction of our inherited dual sovereign republic. Say good-bye to freedom and prosperity. The American dream is kaput.

    7. sam says:

      Who has the job of repeal ? Congress or the court? I believe congress should repeal Obamas Care. Not a Court.

      • marie says:

        i feel trapped by our government- court and congress! Which ever has not exhibited any courage to date. Both should do a double wammy and repeal it the end of June.

    8. Linda says:

      All I can say is that the decision is in the hands of the all mighty now…we must pray every day and night that Obama Care is struck down in it entirety. God Bless America

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