Obamacare and a Year of Legal Commentary


Tomorrow brings one of the most highly anticipated decisions by the U.S. Supreme Court in recent years: the ruling on the constitutionality of the health-care law that is arguably the crowning achievement of President Obama’s first term in office. Incidentally, tomorrow also marks the one-year anniversary of the launch of Verdict, Justia’s legal analysis and commentary site.

Since Verdict’s inception, the ten regular columnists and a handful of guest columnists have been offering invaluable thoughts, responses, criticisms, and insights on important political and legal issues. One of the topics to which several columnists have dedicated substantial time and thought has been the progression of the Obamacare controversy.

On the eve of the High Court’s momentous decision (and Verdict’s comparatively diminutive birthday), we invite you to review what Justia columnists Vikram David Amar and Michael Dorf have been writing about Obamacare.

Vik Amar’s Columns on Obamacare

Amar discusses the Sixth Circuit’s ruling that upheld Obamacare, focusing on the factors leading to that decision.

Amar considers and responds to the most important Commerce Clause arguments that the Eleventh Circuit panel majority invoked in striking down the individual mandate: (1) the unprecedented nature of the mandate; (2) the lack of any individual’s impact on the economy; (3) the slippery slope argument against federal power; and (4) the nature of insurance and healthcare as matters traditionally of state concern.

Amar contends that the “slippery slope” argument against Obamacare doesn’t really slip—pointing out that a very similar risk has existed in Commerce Clause jurisprudence for half a century and has not “slipped.”

Amar responds to Stanford law professor Michael McConnell’s critique of the arguments of liberal law professors who defend the constitutionality of Obamacare, arguing that the criticism is not based in actual legal arguments, whereas those supporting Obamacare’s constitutionality have adequate basis in law for doing so.

Michael Dorf’s Columns on Obamacare

Dorf predicts the potential impact of the resolution of the legal battle over Obamacare, arguing that the Court’s PPACA decision—like Bush v. Gore before it—will have little effect as a legal precedent, but a substantial political effect.

Dorf comments on three important exchanges among the Supreme Court’s Justices that occurred during the Obamacare oral argument and describes what he believes to be the basis for the government’s best hope of winning the case.

Dorf considers how much of Obamacare the Court might invalidate if it finds the individual mandate provision unconstitutional, noting that while the statute would work better if the minimum coverage provision were to be left standing, it would still work if that provision were to be struck down.

The time for predictions and analysis nears its end, and now we must merely wait and see.