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U.S. Supreme Court

Kennedy and Roberts Are Crucial Votes on Health Care Law

Posted Aug 17, 2011 6:00 AM CDT
By Debra Cassens Weiss

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The U.S. Supreme Court hasn’t agreed to review the Obama administration’s health care law, but that hasn’t stopped the pundits from making some predictions.

The swing voters may be Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, Reuters reports. At issue is whether Congress had the constitutional authority to include a provision requiring Americans to buy insurance or to pay a penalty.

The court’s four liberal justices are likely to vote to uphold the law, constitutional experts told Reuters. But they disagree on likely votes by some of the others.

Supreme Court litigator Kevin Russell says Kennedy has been protective of state power and may strike down the law, the story says. George Washington University law professor Orin Kerr predicts Kennedy will vote to uphold the law, along with Roberts.

Kerr elaborated in a post at SCOTUSblog. Roberts signed on to expansive views of the necessary and proper clause in United States v. Comstock, a case involving Congress’ power to commit sexually dangerous persons after completing their sentence. And Kennedy is likely to uphold the law given his concurring opinion in United States v. Lopez, which struck down a federal ban on guns near schools.

Several constitutional experts have weighed in on the issue at SCOTUSblog.

Prior coverage:

ABAJournal.com: "11th Circuit Strikes Down Insurance Mandate in Health Care Law, Creating Circuit Split"

ABAJournal.com: "Supreme Court Asked to Decide Constitutionality of Obama Health Care Law"

ABAJournal.com: "6th Circuit Upholds Health Care Law’s Insurance Mandate"

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