I realize that at this moment in time, far more people are concerned about Trayvon Martin’s tweets or George Zimmerman’s facial injuries, but this week there was something far more important happening, with much longer lasting consequences
than anything that happens in Sanford’s Bonfire of the Vanities. I’m talking about the oral arguments for the Patient Protection and Affordable Care Act, or as it’s more commonly known; Obamacare.
Not since the second Militia Act of 1792 has the Congress ordered citizens to purchase something. In that case, it was a musket and accessories. But that was under the President’s article 2 powers, not the commerce clause, so the Obamacare mandate to purchase health insurance is something brand new. Unless you’re simply a statist who regards the State as superior to everything else in society, including the constitution, that’s a tough sell. And Solicitor General Donald Verrilli showed that before the Supreme Court on Tuesday.
Verrilli has taken a lot of heat for his nervous stumbling and bumbling before the court, but I’m not sure if he had been composed, calm, and collected it would have made a difference. He just didn’t have good arguments. Particularly for questions that he must have known that he would be asked, as when Justice Kennedy asked about the limits of the commerce clause. I don’t think even Joe Pesci from My Cousin Vinny could have saved this case.
I was particularly struck by the news coverage this week that the pundits, talking heads, and reporters simply accepted as a given that the four liberal judges would vote to uphold the law, no questions asked. The debate seemed to roll around the idea that Justice Kennedy, the swing vote, could be persuaded to come down on the side of the law. There was even some speculation that Chief Justice Roberts might put aside “politics” to vote to uphold.
Since of course to vote the law down is political, but to uphold the law would just be good jurisprudence!
But for the liberal judges there isn’t that sort of pressure. No one is asking the liberal justices to “put aside politics.” One of the benefits of being a liberal judge who believes in a living, breathing, constantly evolving constitution is that you don’t have to worry about the actual text of the constitution, or the intent of the founders. A living constitution means never having to say you’re sorry. Or, to put it another way, if the law feels good, do it.
Leave the cracking of books to the strict constructionist eggheads.
If the individual mandate goes down, it would be with a bit of irony, since President Obama originally opposed the mandate during the 2008 campaign, using some of the same arguments against Hillary that the President’s opponents are now using against him.
He should have stuck with his first instinct.
We’re not going to find out how this all plays out until later this summer when the court releases its decision even though the Justices likely voted on this issue today. But I’m not afraid to go ahead and handicap the decision now. My gut feeling is that the odds are better than even that the court will uphold the mandate. I base that on the fact that the mandate has 4 automatic votes for. So that means that only one vote is needed to be swayed among the other five Justices who actually have to study this case (unlike Ginsberg and Breyer, who will be windsurfing instead of reading law books).
But if the mandate is overturned, I think it’s likely that most of the law will stand intact. I figure the Justices will just throw this mess back to Congress to fix the creaking boat of Obamacare with a mandate sized hole in the bottom of it. The Congress, divided as it is, will be able to accomplish nothing. At least until next year. And what then happens to health reform will largely depend on which party does well in November.
- Place Your Bets on Obamacare (slate.com)
- The Obamacare mandate appears to be teetering on the edge of being struck down by the Supreme Court… (catholicexchange.com)