The unconstitutionality of Obamacare has never been questioned here at American Notebook. While the world awaits what the Supremes think about it, it seems clear they will pull the plug on this terminally ill piece of legislation. They will surely couch it in fancy legal terms, with many references to precedent. But once you get to the bottom of it, they will write the death certificate for this horrible law based on one simple fact. If the court uphold Obamacare, it will have surrendered huge amounts of its own power to the legislative branch.
For the essence of the issue before the court is, can the commerce clause mean anything Congress says it means? If anything and everything is commerce, even non-commerce such as not buying health insurance, and if Congress has a clear and unquestioned constitutional mandate to regulate commerce, then virtually no piece of Congressional legislation can ever be overturned by the Supreme Court again.
The court will essentially be torpedoing Marbuy vs. Madison, which is the cornerstone of the concept of judicial review written by Chief Justice John Marshall during the Federalist period. That would turn the generally accepted principles of American jurisprudence on their heads. And it would marginalize the Supreme Court in a way that it might never recover from. Making it the weak sister in the federal government, unable to check, unable to balance.
Truly there is a great deal at stake here. It might not be too much to say accepting Obamacare would mark the transition of the United States from a Republic to a democracy in which tyranny by a majority could become a real possibility whenever a super majority appears in the halls of congress.