One way or another, ObamaCare will end in 2012. ObamaCare could be undone by a Republican majority in both houses of Congress. It might be terminated with a new Republican president like Mitt Romney who has declared that he will repeal ObamaCare by issuing an executive order that will instruct the Secretary of Health and Human services to grant a waiver to all 50 states. The United States Supreme Court might declare ObamaCare unconstitutional which would effectively end the program.
All three scenarios are possible. However, the most realistic scenario is that ObamaCare goes before the Supreme Court. The sweetest thing about this scenario is that President Obama and the lawyers working for his administration gets to decide whether his health care plan goes before the Supreme Court this fall or or sometime in 2012 or 2013:
Obama administration lawyers face a decision by Monday that carries a high political risk and will probably determine whether the Supreme Court decides on the constitutionality of the health care law before next year's presidential election.
The Justice Department could ask the full U.S. 11th Circuit Court of Appeals in Atlanta to reconsider a 2-1 decision in August that declared the law's mandate that all Americans must have health insurance unconstitutional. But seeking the full court review could take weeks, or even months, and probably push back a Supreme Court ruling until 2013.
Or government lawyers could opt to skip the full review in the lower court and appeal directly to the Supreme Court this fall. That in turn will probably lead to a constitutional ruling on President Obama's healthcare law by next summer.
Under the appeals court's rules, the Justice Department must notify the 11th Circuit by Monday whether it will seek a full court review. In recent weeks, lawyers on both sides of the case have been speculating on whether Obama's legal team is eager to get the healthcare dispute before the Supreme Court soon, even if it means risking an embarrassing defeat for the president as he seeks reelection.
"Everyone is waiting to see what they do Monday," said Karen Harned, a lawyer for the National Federation of Independent Business. "For the Supreme Court, this is only a question of when they will decide it. And we are hoping it will be decided in the next term."
Whatever Obama decides to do, it comes with a strong political risk or reward:
The fate of Obama's healthcare overhaul figures to be at the center of next year's presidential race. Republicans have been running on a promise to "repeal Obamacare." If the Supreme Court were to strike down Obama's signature law as an unconstitutional overreach by the president and a Democratic Congress, it could deal a damaging blow to the president's campaign for reelection.
However, if the justices were to uphold the law as a reasonable regulation of the nation's health insurance market, their decision would give a powerful endorsement to Obama's crusade for healthcare reform just when he most needs it. A pro-Obama ruling by the court would also badly undercut claims by "tea party" activists who contend federal regulation of healthcare is outside the bounds of the U.S. Constitution.
ObamaCare will most likely be ruled as unconstitutional by 5-4 vote and it will be a crushing blow to Obama and his chances of being reelected.
However, if the Supreme Court does uphold ObamaCare, the law will still be unconstitutional. Just because the Supreme Court says it is doesn't necessarily make it so. There have been plenty of Supreme Court cases that have been held not to be in violation of the Constitution despite the fact that it was and still is. Many of these cases were later overturned and some of them still have yet to be overturned.
Regardless, I think Americans have many reasons to be excited for 2012. However, if we want to defeat Obama and roll back his progressive agenda, we are going to have to work real hard to unseat the Democrats in Congress and the White House.