In a recent post, I suggested that Obamacare will be almost impossible to repeal through political action. History shows that it is extremely difficult to eliminate entitlements. In addition, repeal would require Republican congressional majorities and a Republican president; I doubt we will get both simultaneously for years to come. Although various state governments and conservative and libertarian activists are planning to file legal challenges to the bill, I also doubt that lawsuits alone can achieve that goal. The Supreme Court is reluctant to take on the political branches of government on major issues that are a high priority for Congress and the president. When it has done so in the past (as in the 1930s), it has usually lost.
But while neither legal nor political action is likely succeed by itself, a two-track strategy combining the two stands a better chance. Unlike most high-profile policy initiatives enacted with strong presidential and congressional support, Obamacare is generally unpopular. Polls show substantial opposition to it, with opponents outnumbering supporters by 10 to 20 points (see here and here). If majority opinion continues to oppose the bill and Republicans make big gains in November as a result, the courts might be less hesitant to strike it down. They will not face any political retribution if they strike down a bill that most of the public and a new congressional majority actually opposes. Indeed, their public standing might even increase if they did so. As co-blogger Randy Barnett puts it:
[I]f this legislation is popular, they are unlikely to strike it down. But if it is deeply unpopular, and one or both houses of Congress flip parties as a result, then the legislation is much more vulnerable. Assuming the Supreme Court follows the election returns, as “realists” claim.