If there’s a precedent for this, I don’t know what it is. Better than half of the states in the union are now actively trying to kill this law.
Does it matter? Quite possibly, yeah.
But in politically sensitive cases such as this one, legal arguments are not the only factors that matter. The Supreme Court is usually reluctant to strike down a major federal law that has strong support from the president and his party and is a big part of their political agenda. In this case, however, the law in question is unpopular with the general public. . . . And the states’ action is an indication that it is also disliked by a large part of the political elite. Widespread popular and elite opposition gives the Court the political cover that it would need to strike down the law. If the political winds continue to blow against the law, the justices can be confident that a decision to strike it down won’t create a dangerous backlash against the Court.
Judge Henry Hudson’s ruling that the states have a case opens the door for the multi-state suit, which of course isn’t the only one, to get traction as it rises up the judicial food chain. Everybody knows this one’s going to the Supreme Court, and when it gets there it’s probably going to fall to Justice Kennedy to either uphold or toss Obamacare.
Kennedy is a bit squishy. The more states are actively participating in efforts to kill this legislation on constitutional grounds, the better the chances he’ll join with the Scalias, Robertses, Alitos and Thomases who will gleefully stick the daggers into it.
This might be why the GOP leadership in the House, which is planning on an Obamacare vote next week as a symbolic effort, is playing it close to the vest as to what the next step is when the Democrats in the Senate reject the repeal bill. Several House Republicans, Rep. Paul Ryan (R-WI) among them, have gone on TV expressing that maybe if the law gets thrown out in the courts they won’t have to engage in all the machinations they’ve been planning.