It is official!  The Supreme Court of the United States will review the constitutional challenge to Obamacare.  The Court agreed to hear the case coming from the 11th Circuit (which held the mandate portion of the law unconstitutional).  This challenge was brought by a group of governors and attorneys general from 26 states and other plaintiffs.  From the WSJ:

Lower courts have issued conflicting rulings on whether the law's individual insurance mandate is constitutional. The Justice Department, which is defending the law, and several challengers all filed petitions asking the Supreme Court to resolve the disagreement.

The challengers, who view the insurance requirement as an unprecedented intrusion on individual liberty, argue that Congress can't use its interstate commerce powers to regulate citizens who choose not to participate in the health-insurance market.

The Obama administration argues the insurance mandate is a valid way to address a national crisis in which the uninsured impose huge costs on the U.S. health-care system. It also says the provision is an essential part of the law's insurance reforms, which require insurers to accept all prospective customers, even if they have pre-existing medical conditions.

In the event the justices strike down the individual mandate, the court also agreed to rule on whether the rest of the health-care overhaul can remain intact. The law's challengers are seeking to void the entire law, while the Obama administration argues that most of the law's provisions aren't connected to the mandate and should remain in place even if the insurance requirement is invalidated.

This last part is key.  You may recall from our previous posts (here and here) that the 11th Circuit did not uphold Judge Vinson's decision in its entirety.  Judge Vinson had declared the whole of Obamacare unconstitutional after striking down the mandate because of the law's dependence on the mandate.  The 11th Circuit narrowed its ruling to the mandate.

It is good to hear that we will get some final resolution on the whole enchilada.  The high court's decision comes on the heels of a clear victory last week for the Obama Administration with the U.S. Court of Appeals for the District of Columbia declaring the mandate constitutional.  Much has been made of this opinion because it was authored by an "icon of the conservative legal movement."  

While it is true that Judge Silberman is a Reagan appointee, I think it may be a stretch to describe him as an "icon" of conservatives.  If he was that, I think it is safe to say he has "grown in office" the way other such "conservative" appointees have (e.g., Warren (Eisenhower), Blackmun (Nixon), and Souter (Bush I)).  His opinion effectively destroys any limiting principles on the Commerce Clause.  As the dissent points out, the next logical steps are "mandatory purchases of retirement accounts, housing accounts, college savings accounts, disaster insurance, disability insurance, and life insurance."

Regardless, no one will remember Silberman's opinion after June 2012.  We will have a new opinion to rue or rejoice over, most likely authored by Justice Kennedy.  One thing is clear: the outcome is completely unpredictable.   

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