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New Republic: Obamacare on Trial

March 18, 2012

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Jonathan Cohn writes that the trial over the Affordable Care Act is a weak bid by conservatives to overturn legally what they could not block politically. However, Cohn writes, should it be overturned, it could have very far-reaching consequences.

Next week the Supreme Court hears oral arguments in the lawsuits challenging the Affordable Care Act. But is it really the "case of the century," as pundits have started calling it?

It's difficult to say without knowing the outcome. Presently that distinction belongs to Bush v. Gore, a decision that truly altered history. Just think how the years after 2001 would have unfolded if Al Gore had been president. But Bush v. Gore didn't change constitutional doctrine. The five justices voting to end the Florida recount and make Bush president wrote that their argument was "limited to the present circumstances" – in other words, that they were not making broader arguments about federal power over elections and interpretation of the equal protection clause.

That claim provoked widespread derision within the legal establishment, which took the statement as a sign even the judges understood they were standing on a weak legal foundation. But the justices may get their way. Most experts still consider Bush v. Gore bad law.

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