Posted on 03/28/2011 7:16:31 AM PDT by PJ-Comix
fter decades of battles in the political system, and now in the courts, the fate of health care reform is likely to come down to the vote of one man: Justice Anthony Kennedy. As the swing vote on a Supreme Court closely divided between liberals and conservatives, he will almost certainly have the power to uphold or strike down the “individual mandate” that is a centerpiece of President Obama’s Affordable Care Act (ACA). Nobody seems able to predict what Kennedy will do, and even after years studying his jurisprudence, I am also unable to say with any certainty.
I can, however, explain the reason why Justice Kennedy’s ultimate view is so uncertain. The question of the individual mandate’s constitutionality is closely tied to two competing values that Kennedy believes in deeply: a judicial duty to enforce limits on the federal government, and acceptance of a practical post-New Deal conception of the federal power to regulate a national economy. His record contains repeated defenses of both commitments, and when confronted with cases that pit them against each other, he often tries to have it both ways. With the mandate, though, Kennedy will have to choose.
(Excerpt) Read more at tnr.com ...
Were he to strike the individual mandate but leave the rest of the ACA intact, Kennedy’s opinion might include conciliatory language inviting Congress to pass new legislation that more explicitly ties the mandate to the enumerated powers to regulate interstate commerce and to tax and spend. This is what he did in Lopez, writing that “Congress can revise its law to demonstrate its commercial character.” Within months of the Court’s decision in Lopez,Congress overwhelmingly voted that criminal prosecution required any weapon possessed in a school zone to have traveled in or otherwise affected interstate commerce. After Rapanos, the Army Corps of Engineers issued several memos adopting a version of Kennedy’s “substantial nexus” standard.
But in the aftermath of a Supreme Court decision to strike the individual mandate, revision by Congress to meet constitutional concerns would not be so easy. In practice, however, a Supreme Court decision striking the mandate but inviting a political fix would be fatal to the ACA. The initial debate in Congress over the Affordable Care Act was contentious enough; after Republican gains in the 2010 midterm elections, any attempt to restore the mandate by passing it as new tax legislation seems politically impossible.
So the most likely outcome, according to this writer, is that Justice Kennedy will probably strike down the ObamaCare mandate but leave the rest of it alone which has the practical effect of KILLING ObamaCare.
BTW, WHEN does this case finally reach the Supreme Court?
If osamaobama and crew have their way, it will be after one of the current conservative justices is dead and replaced by a lefty.
I heard that it will definitely be before the 2012 election but WHEN? It is now expedited.
He apparently doesn't care for the TOTUS and has been quoted as saying he has no plans to retire until after Obama is out.
Kennedy may be a moderate but I don't think he took kindly to TOTUS's chiding of the court a couple of SOUs ago. What goes around comes around.
ObamaCare is shaping up as a big election issue for 2012. It is like a poison pill for Democrats. Notice how almost NONE of them wants to even talk about it. They just wish this issue would go away. It won’t. Senator Tester of Montana even whined that he wasn’t the 60th vote for ObamaCare. He produced a video of the vote to show that he was technally #52. LOL! EVERY Senator who voted for ObamaCare was really the 60th vote since their vote made the difference as to whether ObamaCare passed or not.
On this issue I have no faith in Kennedy voting his conscience or voting to uphold the constitution.
Democrats tout Obama-Kare as their signature achievement.
It is also the issue they, and their media monkeys, will make into Obama’s major legacy.
Kennedy will not upset those claims and plans.
This article was written from a liberal perspective and the author thinks Kennedy will vote to kill the mandate but uphold the rest of ObamaCare which in effect kills ObamaCare.
Of course, that's rubbish. There are several legal principles that Kennedy hasn't strayed from over the years that Kennedy could easily fall back to if he chooses to invalidate the individual mandate.
Having said that, it's true that there are several recent cases that don't calm any nerves with respect to this issue, not the least of which is the aforementioned United States v. Comstock, 560 U.S (2010). Randy Barnett tackles that particular case here, and I believe he offers more reasoned commentary.
Anthony Kennedy is a scary justice. He was a pro-life Republican when he was nominated by Reagan. He received endorsements from every major pro-life/right to life group in America. After several years on the high court, Kennedy started to pal around with the wrong crowd. He fell in with the liberals and is now pro-choice. If Kennedy is willing to flip on the abortion issue, he’s open to anything. If it wasn’t for Arlen Spector teaming up with Teddy Kennedy in destroying Robert Bork, SCOTUS decisions for the last 25 years might have turned out a lot different.
Killing the mandate but leaving the rest intact doesn’t kill ObamaCare. It kills the entire health insurance industry, which will leave the government no choice but to implement single-payer.
Well the cases currently pending before the 4th and 11th Circuits have to be presented, argued and ruled on before an appeal can be made to the Supreme Court. Not sure if briefing has been done in either case yet. They most definitely haven’t yet been argued.
With the current makeup of Congress, that won't happen for a long time...if ever. Senate would need 60 votes and they look to fall BELOW 50 in the next election cycle.
Of course, administrative applied defacto single payer comes about as the insurance industry and hospitals fail. The broad administrative administration is built into the law. They may need a bill or two at the very end of private insurance and hospitals, but they can have those markets killed dead by the time it is required.
My question is, why does obamacare continue onward, while there is a fed court ruling to the contrary? That should have stopped it in its tracks while awaiting a higher court decision.
The obama admin thinks its above the law, heads should roll over this or we are no longer a "nation of laws".
You are spot on with your rhetorical question. However, some parts of ObamaCare that are intended to reshape the exchange of information, reimbursement and physician behavior are tucked away in the American Recovery Act, not the Affordable Care Act.
I’m betting on a 5-4 decision to strike down the individual mandate which will basically kill the whole thing. Then the legislature can drive a stake in its heart. If the 11th Districk Appeals court expedites then I would think SCOTUS would get this thing by the fall. Let us pray.
For the same reason that DOMA is still the law of the land even though a district federal court in MA said last fall that DOMA (ironically) also violated the 10th Amendment; Because there are competing district court decisions.
This isn't at all unusual. When there are facial challenges to existing legislation, there can be conflicting district court and circuit court decisions. Frequently, those decisions are stayed until the case is finally resolved on appeal, which can normally takes years.
Just last week, the 11th Circuit agreed to fast-track this appeal, which I believe will be heard next month. At least until then, the lower court ruling will be stayed.
I really don’t think you understand the ramifications of eliminating the mandate but leaving the rest intact. Suddenly the insurance companies will be forced to insure anyone with no pre-existing conditions limitations. This will lead to chaos and skyrocketing rates in the health insurance market, and as soon as consumers figure out that they can just forgo the health insurance until they get sick, the health insurance industry will go kaput. No more health insurance for anyone.
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