This week, the Supreme Court likely will strike down the individual mandate of the health care law, and perhaps go so far as to strike the whole thing down. It is telling to hear about how Democratic Congressional leaders never took seriously arguments that the health care law was unconstitutional.
Under the current constitutional law, it IS constitutional. But the Supreme Court can use a vehicle like Obamacare to drastically change constitutional law. That’s how judicial review works. Ideology matters. Politics matters. Elections matter. Only the hardest cases reach the Supreme Court, and those cases are usually cases where prior precedent fails. The vast majority of Americans want Obamacare struck down. It would be shocking if the most conservative Supreme Court in memory DIDN’T strike it down.
Tribal advocates should be feeling deja vu, of course. The Court changes Indian law all the time. Ideology matters here, more than politics (because most Americans couldn’t care less about Indian law).
In the past weeks, during the VAWA Reauthorization and SAVE Native Women Act debates, Dems assumed the constitutionality of a partial Oliphant fix. Under current law, it’s obviously constitutional. But the Supreme Court can change things. And it does, as Indian law observers know.
Harold Monteau pointed out the disingenuity of the Congressional Research Service report asserting the unconstitutionality of a partial Oliphant fix. He was right to do so under the law, but that doesn’t make the report wrong.
If I am right and Obamacare goes down, then the world will know what Indian law observers have known (or should know) for a long while.
TOMORROW, if the health care decision doesn’t come out, why Justice Kennedy’s consent theory of tribal governance may play an important role in the theorizing constitutional limits on the commerce clause.