Free Markets, Free People

SCOTUS and ObamaCare: So how is Justice Kennedy feeling about this? [Update]

One of the jokes that has gone around for some time concerning ObamaCare’s eventual hearing in the Supreme Court is it will likely revolve around what Justice Kennedy had for breakfast.  The obvious point being most SCOTUS observers can pretty much predict how the other 8 Justices might rule, but Kennedy is sort of the wild card and swing vote.

So, as you might imagine, many eyes are on him.

Today was the 2nd day of oral arguments in the case.  This question from Justice Kennedy may give an indication of how he’s leaning in the case:

JUSTICE KENNEDY: “Could you help — help me with this. Assume for the moment — you may disagree.  Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?   I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”

My answer to his question is “you bet”.  How did the Solicitor General answer?

GENERAL VERRILLI: So two things about that, Justice Kennedy. First, we think this is regulation of people’s participation in the health care market, and all — all this minimum coverage provision does is say that, instead of requiring insurance at the point of  sale, that Congress has the authority under the commerce power and the necessary proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market, because this is a market in which — in which you — although most of the population is in the market most of the time — 83 percent visit a physician every year; 96 percent over a five-year period — so virtually everybody in society is in this market, and you’ve got to pay for the health care you get, the predominant way in which it’s — in which it’s paid for is insurance, and — and the Respondents agree that Congress could
require that you have insurance in order to get health care or forbid health care from being provided.­

Uh, I don’t know about you, but it seems to me that the Solicitor General sidestepped the question and erected a giant strawman.

If you want to read the transcript of today’s oral arguments they’re here and they’re very interesting.  If I had to guess, I’d say the law is in trouble.  I found the arguments for to be fairly weak and I got the indication that most of the Justices (well, at least a majority of the Justices) may have as well.

Bottom line, Kennedy’s question is still laying out there unanswered. 

UPDATE: More Justice Kennedy:

JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

Indeed, it does.


Twitter: @McQandO

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23 Responses to SCOTUS and ObamaCare: So how is Justice Kennedy feeling about this? [Update]

  • Bet, aside from the probability of ‘executive orders’ as a result of the Supreme Court overturning this, if they do, bet that a lot of people’s moods will improve.

    • @looker Yeah, I don’t really care about the politics or who this can help or hurt, I want this monster struck down

      • @The Shark I just don’t understand how the justices can sit there and NOT think this will result in scope creep if they approve of it. If I can see there’s no limit to where they can take this, I don’t understand how they won’t be able to. And as for Verrilli’s response that they don’t think this can be construed to mean the government can force me to buy a Chevy Volt….he’s so full of crap I can smell him from Texas. That’s EXACTLY what it means given the right set of legislators, President and justices and those don’t ALL have to be in the same time frame. Let him explain to the founders where the freaking Commerce Clause has landed us.

        • @looker 4 of the justices don’t mind mission creep…..they’d probably be all for it. To Sotomayor or Kagan, that’s a feature not a bug

        • @The Shark Yes, they’re the justices I had in mind when I said ‘given the right set of…”

        • @looker I’ve been reading and seeing how freaking Kagan practically held the Solicitor’s hand while she guided him through the questioning. What a paragon….

        • @The Shark I didn’t get to hear much (did a mediation today), but I did hear Ginsberg working him like a dummy on her lap. It won’t help.

        • @The Shark What’s surprising is she didn’t get up and submit testimony on behalf of.

    • @looker The only way this stands would be based on that time tested legal doctrine known as “sancti fumat”

      • @Neo_ Ah, c’mon. The best guess I can come up with is ‘holy smoke’. Is correct?

  • I think the worst part of the solicitor’s response is that it leaves out that the government has artificially created a large part of that market through its previous unfunded mandates. How many of those persons who see a physician every year are seeing a physician in the emergency room because EMTALA tells the hospital it has to let them in? How many of those people are truly in need of health care at the “point of sale?”

    Furthermore, if the point was legitimate, the mandate wouldn’t have 500 exemptions, particularly the one that subsidizes the fulfillment of the mandate for those who “can’t” pay.

  • How heavy was the burden for government intervention in the Raich case? We all know how badly that turned out.

  • Justice Breyer on unlimited government via the commerce clause.
    JUSTICE BREYER: All right. So if that is your difference — if that is your difference, I’m somewhat uncertain about your answers to — for example, Justice Kennedy asked, can you, under the Commerce Clause, Congress create commerce where previously none existed.
    Well, yes, I thought the answer to that was, since McCulloch versus Maryland, when the Court said Congress could create the Bank of the United States which did not previously exist, which job was to create commerce that did not previously exist, since that time the answer has been, yes. I would have thought that your answer — can the government, in fact, require you to buy cell phones or buy burials that, if we propose comparable situations, if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, Ship Burial, ERISA Burial and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system,wouldn’t the answer be, yes, of course, they could.

  • “But back during the 2008 campaign, Obama argued strenuously against the individual mandate. In a debate in South Carolina, he said: “A mandate means that in some fashion, everybody will be forced to buy health insurance. … But I believe the problem is not that folks are trying to avoid getting health care. The problem is they can’t afford it. And that’s why my plan emphasises lowering costs.”
    In February 2008, he said that you could no more solve the issue of the uninsured with an individual mandate than you could cure homelessness by ordering people to buy a home.”

  • Righties, please. Your narrative on this just isn’t persuasive. You clearly don’t understand our living, post-modern constitution. See, what the government can do is socially constructed. There are no fundamental rights, the way you dense righties talk about them. We’re just carbon-based life forms, and we construct whatever rights we want to, and chuck any that we don’t like.

    So when you blather about the rights to your own money, that’s just silly. The government needs that money, partially to pay wise pragmatic leftist social scientists indoctrinate, uh, educate your children.

    But the right to healthcare, now that’s a different thing. Of course there’s a right to healthcare. I’ve said I believe it should be done at the state level, because I’m really kind of libertarian. Stop laughing. So that would mean I’m against Obamacare. But Obama is just dreamy, with that christlike visage, and he thinks like me, so I support Obamacare, even though that contradicts what I said before Obama was elected. Well, I mean it appears to contradict it. It doesn’t really, of course. And if you’ll come over to my blog, you can read a post with so many words it will crash your browser explaining why it isn’t really a contradiction at all. Which doesn’t stem from any tendency I have to rearrange stuff in my head to avoid ever, ever admitting that I’m wrong about something, so stop saying that.

    It’s clear that justices like Kagan and Sotomoyer think Obama is dreamy too, so they’re obviously going to help get this thing over the silly obstructions a small contingent of extremists have placed in its path. And just because of majority of state governments joined the lawsuit, well, it’s still just a bunch of extremists. Even if they’re a majority, and even if two thirds fo the American people agree with them, they’re extremists because they disagree with those of us who have come to a consensus in the faculty lounge. And I’m confident the liberal, uh, I mean fair-minded justices who see the beauty and elegance of post-modern leftism will use their godlike powers of post-modernism to convince at least one of the Neanderthal members of the court. Probably Kennedy, who seems to at least sometimes respect the rights of those of us who clearly ought to be telling all the rest of you exactly how to live your lives.

    • @Ott Scerb “See, what the government can do is socially constructed. There are no fundamental rights, the way you dense righties talk about them. We’re just carbon-based life forms, and we construct whatever rights we want to, and chuck any that we don’t like.” contradicts this, “I’ve said I believe it should be done at the state level, because I’m really kind of libertarian.”

      Almost every libertarian I know believes in the following, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

      Rights are not defined by government. People form governments to protect the rights they are created with.

      Or are you just engaging in satire. Because on a second pass your comment here seems far fetched.

      • @tkc882 Go with the second pass – Ott is our resident progressive simulator. Though he does sound quite remarkably like at least one one again off again visitor. I’m sure, as they say in film, that any resemblance is purely coincidental.

        • @looker A “progressive” passes the Turing Test. The singularity approaches. It’s like one of those sci-fi stories where all the Pol Sci Profs are replaced by mindless pod-people… and no one notices.

        • @DocD Whattaya mean ‘stories’?

      • @tkc882 “your comment here seems far fetched”

        ——-LOL. I like the understatement. It is, sadly, no more farfetched than the inspiration and role model for Mr.(has the gender, if any, been determined?) Scerb.

    • @Ott Scerb Happily, we now have the “constructs” of a wise Latina to break up all that “objective” thinking pretense. CRT rox…!!!