Free Markets, Free People

Justice Kennedy

Ruminations about SCOTUS/ObamaCare

A lot has been said and written about the oral arguments before the Supreme Court concerning ObamaCare.  Many have claimed you can’t base much on such arguments.

Perhaps.  But it seems to me that you can get an indication of the mood of the court if you consider them carefully and keep them in context.

What I’ve surmised over the past few days is the law is in deep trouble.  I think, if nothing else, the oral arguments pointed out how dismally weak and poor the arguments “for” this law are.

Of course, depending on how they would like to see the court rule, each side has found ways to spin these arguments to support their hoped for result.  No huge surprise there.

But I think the one thing that is clear is the court is pretty well split down the middle and along ideological lines.  And, as we’ve said for some time, in reality the result will hinge on the vote of Justice Kennedy.

However, I think you have to keep in mind that it won’t be a single ruling but one which entails several votes.  One on the individual mandate, one on severability and possibly, depending on how the severability vote goes, if portions or the whole bill ought to be struck down.  If the whole law is struck down, of course the expanded Medicare portion discussed yesterday will go with it.

That leaves you wondering where Kennedy is in his deliberation of the case.  Again, if looking at indications to be gleaned from the oral arguments, one could assume he finds it true that the individual mandate would “fundamentally change” the citizen’s relationship with government – and not to the citizen’s favor.  I think it is also true that he is not satisfied that the government has successfully articulated a “limiting principle” – a critical and key point in the discussion.

Finally, I get the impression, from yesterday’s arguments, that Kennedy is leaning toward “paving over” the whole law.  In other words, giving Congress a “do over” since taking the mandate out would create a law and a consequence that it is hard to argue was Congress’s original intent.  What is also interesting is the developing opinion that striking down the entire law would actually be an exercise in judicial restraint, not judicial activism.

Justice Ruth Bader Ginsburg said Mr. Clement is asking the Court to conduct "a wrecking operation," before stating that "the more conservative approach would be salvage rather than throwing out everything." The Obama Administration didn’t say exactly that, but it did argue that the mandate is indispensable to its supposedly well-oiled regulatory scheme and if it is thrown out the insurance rules should be too.

But Justice Anthony Kennedy doubted Justice Ginsburg’s logic, since by taking out only the individual mandate the Court would in effect be creating a new law that Congress "did not provide for, did not consider." To wit, costs would soar without any mechanism to offset them.

"When you say judicial restraint," Justice Kennedy said, "you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the act. I suggest to you it might be quite the opposite." Overturning the mandate alone, he continued, "can be argued at least to be a more extreme exercise of judicial power than to strike the whole."

This is a critical point.

I think it is clear the 4 justices traditionally identified with the liberal side of the court are fore-square for the law and will find some way to justify it’s egregious and unconstitutional over-reach.  And yes, no secret, I’ve always considered the law to be that and nothing I’ve heard in oral arguments has changed that.  I think Justices Thomas, Alito and Scalia are for finding the mandate unconstitutional and for killing the entire law.  I think Chief Justice Roberts is against the mandate although I’m not sure it’s a foregone conclusion that he wants to kill the entire law at this point.   However I think he’ll be persuaded eventually.

That would make Kennedy the guy … again.   No surprise for most who’ve watched the court for the past few sessions.  He often ends up as the swing guy.  You may disagree with my assessment of where he is in his decision making process, but his questions and comments, at least to me, seemed to indicate he was forming a particular opinion and that opinion favored both striking down the mandate and then striking down the whole law.

Should that be the case, and given the Democrats are unlikely to have an unassailable majority in Congress anytime soon as they did when they passed this monstrosity, this is indeed “the most important case in 50 years”.   That’s a “good thing” because the likelihood that a “replacement” will be passed in Congress becomes much less likely.   Kennedy’s vote could save America as we know it and protect us from a law that would “fundamentally” change our relationship with government and place us in a position of involuntary servitude to a government given license to run our lives in pretty much any way it see’s fit to pursue.

Here’s hoping.

~McQ

Twitter: @McQandO