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VIDEO FEATURE: Heck Debates Malcolm on Porn & Santorum 

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Thursday, December 16 2010

I said the other day that the critical ruling of U.S. District Judge Henry Hudson regarding the unconstitutionality of ObamaCare's mandate to purchase health insurance would inevitably end up in front of the Supreme Court.

There's no doubt that this is true.  But I also said that such a hearing might well come down to the vote of Justice Anthony Kennedy (the swing vote of the Court's nine members).  As it turns out, that may not be the case after all.


Jennifer Rubin at the Washington Post has dropped a bomb on the debate over ObamaCare with this fascinating revelation:'s the tricky part: Justice Elena Kagan, having served in the Obama Justice Department, is surely to recuse herself. With the "liberals" one judge down, even a Kennedy vote to uphold the individual mandate would presumably result in a 4-4 tie. And guess what? If there is a tie, the lower ruling stands. In other words, this is really bad for ObamaCare advocates.

This is a stunning development.


Yes, it's true that there should be another step in the appeals process between Judge Hudson and the SCOTUS.  That intermediate step would be the 4th U.S. Circuit Court of Appeals.  But most legal analysts agree that the 4th Circuit is likely to uphold Judge Hudson's ruling.


That puts Obama in a no-win situation.  He can let the appeals process take its time and go to the 4th.  That would potentially only strengthen the constitutional case against his landmark bill.  Or he could seek to expedite the process and skip the 4th, requesting the SCOTUS to hear the case immediately.  But the Kagan revelation indicates that might not be the smartest move either.


This is a huge game changer, and it exposes the confident smiles of ObamaCare advocates as pure window dressing.  The individual mandate - which is the linchpin holding ObamaCare together - is in big trouble with the courts.  Stay tuned...

Posted by: Peter Heck AT 07:20 am   |  Permalink   |  0 Comments  |  Email

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