SCOTUS Readies Fake-Fake-Punt On ObamaCare

by JASmius

The penultimate moment has arrived in the ObamaCare saga, in which, much like the old SuperFriends, five (out of nine) caped robed crusaders in a Hall of Justice began the process of swooping in to defeat Red Barry's Legion of Doom, liberate the American people from his latest sinister plan, and otherwise uphold truth, justice, and the REAL American way.....

.....Maybe. The first day's oral arguments seemed to augur well for a favorable outcome; heck, even the SCOTUS' Obamunist minority sounded highly skeptical of the foundation of the individual mandate, the notion that a penalty is a tax is a penalty depending upon the White House's propaganda needs of the moment:

On the first day of oral arguments in the case challenging President Obama's national health care law, justices seemed skeptical that the individual mandate should be considered a tax -- one of the main consitutional defenses being offered for the law.

To be clear, today's ninety minutes of oral arguments did not concern the underlying merits of the case, but whether an 1876 law called the Anti-Injunction Act bars the Court from ruling on the suit at this time. Under the Anti-Injunction Act, people cannot challenge a tax in court until after they have paid it, something that would effectively punt the issue until at least 2015. However, there is some overlap between this question and the idea of whether the mandate is a tax, and justices on both sides of the ideological fence expressed skepticism that the mandate should be treated as a tax.

"This cannot be a revenue raising measure, because if it's successful, there won't be any revenue raised," said Justice Ruth Bader Ginsburg of the mandate.

Another liberal on the court, Justice Stephen Breyer, said of Congress's description of the fine for non-compliance with the mandate, "They called it a penalty and not a tax for a reason."

It isn't difficult to see the appeal of the Anti-Injunction Act dodge; the Regime knows that the longer O-Care remains in place, the lesser the chances of it being struck down or repealed. They also know that early next year is the effective point of no return. Consequently all they care about is stalling long enough for the point to be reached. They could care less how they do it.

Should those of us who see what's left of the United States Constitution as something to which the term "double-ply" most definitely does NOT apply be encouraged by the skepticism displayed by Justices Ginsberg and Breyer? Ace doesn't think so:

I don't put a lot of stock in "signalling" like that, because justices sometimes beat up on the side who they are inclined to agree with - testing the position they lean towards, seeing if it can stand up to scrutiny. Plus, it might look a lot different in the written briefs.

Indeed.

Personally, I think the Supremes will be looking for any plausible hook they can find for punting on this issue. The Roberts Court has had a notable distaste for the prospect of wading into overcharged, hyperpartisan constroversies, predating it going back to at least Bush v. Gore a dozen years ago. The Chief Justice takes a minimalist view of judicial power, preferring to defer to the political branches. Hard to see them wanting to be the spark for the latest partisan conflagration.

OTOH, the DID take the case, one has to assume, because the evisceration of the final tatters of the Commerce Clause was so outlandishly egregious - a congressional oligarchy at best, a presidential dictatorship at worse, most likely a combination of the two - that some sort of jurisprudential limits had to be re-established, within which the political branches can then sort this mess out.

In short, they may not wanna, but they pretty much gotta.

Exit question: You know who this stands to benefit, right?

[cross-posted @ Hard Starboard]