Constitutional Forbearance

Christopher Bryant *

Eleven federal judges have ruled on the constitutionality of the individual mandate of the Patient Protection and Affordable Care Act (“ACA”), also sometimes referred to as “Obamacare.” Five of the six judges appointed by Republican Presidents held that the mandate violated the Constitution, while four of the five judges appointed by Democratic Presidents upheld the law. In the wake of these rulings, countless commentators quickly inferred that the judges’ political preferences and affiliations were deciding factors and forecast that the seemingly inevitable Supreme Court decision of the matter would split the High Court 5-4, with Justice Kennedy casting the deciding vote. The four other Justices appointed by Republicans are expected to vote to invalidate the law, and the four Justices appointed by Democrats are expected to vote to sustain it.

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* Professor, University of Cincinnati College of Law. J.D., 1994, University of Chicago; B.A., 1991, Hanover College.