Despite conservative victory Monday, experts say Obamacare debate ultimately headed to Supreme Court

Matthew Boyle Investigative Reporter
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President Barack Obama’s health care reform law was dealt a serious blow Monday when the part of the law that requires Americans to purchase health insurance was deemed unconstitutional by a federal court in Virginia. But analysts largely agree that the final battle over the law will ultimately be waged at the Supreme Court.

After federal district Judge Henry E. Hudson ruled the individual mandate — the component of the law that requires people buy health insurance — was unconstitutional, Virginia Attorney General Ken Cuccinelli said that while he is pleased with the outcome, there is still a long way to go until the case reaches the U.S. Supreme Court. But he is now more confident it will get there.

Legal analysts The Daily Caller talked to largely agree, for the most part, that both sides of the legal debate over Obamacare have solid, valid arguments and that it will be the Supreme Court that will ultimately resolve debate over the health care law.

Cato Institute fellow Ilya Shapiro told TheDC that the courts keep an eye on what’s going on in other courts regarding similar cases. What repeal-supporters should look to next, he said, is the case in Florida, in which 21 states have banded together to sue the federal government, also over the individual mandate in the health care reform legislation.

“These cases are all going to go up on appeal all around the country in different appellate courts,” Shapiro said. “Ultimately, they’re going to end up in the Supreme Court, probably in the spring of 2012.”

Even former Ronald Regan Solicitor General and Harvard Law Professor Charles Fried, who has said publicly many times before that he doubts any conservatives trying to defeat the health care law by challenging its constitutionality had any shot in overturning it, told TheDC he now thinks it is conceivable that the Supreme Court could overturn the law, or at least part of it, as unconstitutional, though he maintains it’s still not very likely.

Fried, who told Fox News’s Greta Van Susteren back in April that he’d eat his kangaroo hat if the health care law ended up being overturned as unconstitutional by the Supreme Court, said he is not yet bracing to eat that unappetizing meal quite yet and doesn’t expect he will have to anytime soon.

Brookings Institute fellow Henry Aaron thinks Monday’s decision was a fluke. Though he said both sides have made solid arguments to support their case, he said it was a given that “certainly, at some point, one of the state courts would rule this way.”

Aaron continued by noting that conservatives still face a huge uphill battle, as it usually takes a year or more to get through each U.S. court system appellate level. He said it “only takes one” contrasting district court decision for a case or topic to make it up the appellate chain.

Robert Alt, a senior legal fellow at The Heritage Foundation, disagrees with Aaron in that he thinks conservatives should view Monday’s decision as a change in momentum and as a sticking point to get the case to the Supreme Court, where it needs to go to have a lasting impact.

“For conservatives, this decision is a major defeat over the Obama Justice Department,” Alt told TheDC. “The fact that they’ve now lost in District Court, had it declared unconstitutional and the fact that it looks very likely that they’re going to lose again in Florida, goes to show the conservative argument is gaining momentum.”