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.
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.
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.
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.
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".
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.