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Obamacare court cases were frivolous?

As we await a decision from the U.S. Supreme Court on Obamacare, one thing is for sure:

Legal experts were too dismissive of the legal challenge to the constitutionality of the Democrats' plan to require free people to buy something they did not want to purchase.

Immediately following passage of the law, attorneys general from 13 states filed a lawsuit challenging its constitutionality.

Legal experts at the time said the attorneys general did not have a prayer.

"It would be surprising if the (Supreme Court) says Congress can't regulate people who are participating in the $1 trillion health-care market," David Freeman Engstrom, a law professor at Stanford, told McClatchy Newspapers.

"The lawsuit probably doesn't have legs both as a matter of precedent and as a matter of common sense."

He was more optimistic than Sanford Levinson, a law professor at the University of Texas, who thought it odd that anyone would dare challenge the constitutionality of the mandate that just about every adult in America must buy health insurance or pay a hefty fine.

"As a technical matter, it's been set up as a tax," Levinson said. "The argument about constitutionality is, if not frivolous, close to it.

"You'd have to imagine that the five conservative Republicans on the Supreme Court will be willing to invalidate the most important piece of social legislation in 50 years on the basis of a highly tendentious and controversial reading of the Constitution."

Another law professor, Lawrence Friedman of the New England School of Law in Boston, said states are subservient to the federal government.

States can sue, "but I can't imagine a scenario in which a judge would enjoin the implementation of the federal health-care bill," Friedman said.

"Federal law is supreme. There's really no room for doubt that federal law controls."

These experts reject the fundamental principle that the Constitution sets strict limits not on the powers of the individual American or even the states, but upon the federal government itself.

The Interstate Commerce clause does not give the federal government dominion over everyone's lives. Rather it is supposed to allow government to settle disputes among the states, foreign powers and Indian tribes.

The inability of these law professors to see outside their cubicles is another example of the intellectual conformity that dominates the modern college campus in which no one dares challenge authority, all the while smugly scoffing at conservative skepticism.

Federal judges, however, did not dismiss the case without giving a fair hearing to the attorneys general.

Small wonder that two years later the legal experts are surprised to discover that the attorneys general not only have a good case but may very well have a better case than President Obama has.

I should have made a bet with Orin Kerr, another Georgetown law professor, who laid the odds of a successful challenge at nearly zero on March 22, 2010.

"In my view, there is a less than 1 percent chance that courts will invalidate the individual mandate as exceeding Congress's Article I power," Kerr wrote.

"I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9-0 (or possibly 8-1) vote to uphold the individual mandate."

Again, the professor made this analysis without even bothering to hear the arguments the attorneys general would make.

The court did, indeed, hear the case.

It is unlikely justices will unanimously uphold the mandate when the ruling becomes public on Thursday.

I doubt these gentlemen became experts by being so sloppy in their academic work.

Surber may be reached at


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