This article by Jane Anne Morris was published on her website, DemocracyThemePark.org, on November 23, 2014.

In 2012, the U.S. Supreme Court will rule on the constitutionality of the Obama Health Care Plan (OHCP), officially the Patient Protection and Affordable Care Act (2010). Is OHCP constitutional? What is a defensible and prudent green position on this question?

Shrill arguments accompanied several cases challenging the law as they worked their way through the federal courts. Governors and/or attorneys general of 26 states jointly brought one of the cases. Most are Republicans, but Democrats have also supported the challenges. At least fifteen states passed laws or constitutional amendments opposing the OHCP.This level of official, organized state opposition to a duly passed Congressional Act may not be unprecedented, but neither is it an everyday occurrence.

The largely Republican-led attack comes despite the fact that the major bone of contention — the “individual mandate” — was first proposed by the conservative Heritage Foundation in 1989, and twice introduced to Congress in Republican-sponsored bills in 1993.

Before dipping into the minutiae of encrusted precedent that will be picked through and reinterpreted as the U.S. Supreme Court considers this case, I offer some framing observations.

  1. If it continues a clear trend established by three Supreme Court cases between 1995 and 2000, the high court will find OHCP’s individual mandate (and perhaps the whole Act) unconstitutional.
  2. Whatever one’s opinion on the health care law, the future of federal environmental law, labor law, gun control, and human and civil rights law will be affected by how the Justices rule on OHCP.
  3. The OHCP case is only peripherally about health care. The spectacle of the U.S. Supreme Court considering this high-profile case puts on display the breadth and depth of power wielded by the this court. Because liberals and conservatives each accuse the court of judicial activism only when they disagree with its rulings, little attention is paid to the disturbing uniqueness of the Supreme Court, literally the most powerful court in the history of the world.

I bring to the issue of the constitutionality of OHCP considerable baggage, but it is good baggage. First, I am agnostic about the OHCP; second, my most recent book is a history of the constitutional clause that is at the center of debate. …

To read the entire article, click HERE.