“No Man’s life liberty or property is safe while the legislature is in session”.

- attributed to NY State Judge Gideon Tucker

Tuesday, November 15, 2011

The Supreme Court's Review of ObamaCare

Yesterday's unsurprising announcement that the Supreme Court will review ObamaCare next June brought out a tidal wave of punditry.

I heard everything from predictions that the law, or at least the mandatory health insurance purchase component, will be rejected on a 5-4 vote, to Uwe Reinhardt, Princeton's health care so-called expert, claiming that it won't even matter what happens to the mandate. Reinhardt's comments were especially odd, since so much effort was expended by Democrats to use the mandate to fulfill Congressional attempts, amid a lot of outright falsehoods, to have the CBO score the bill, which will add 30 million people to the insured roles, as actually reducing US health care expenses.

On a general note, it feels as if one is living through a court decision like Dred Scott, Brown, Roe, or Marbury. One thing on which everyone can agree is that this is likely the acid, final test for our nation of the unfortunately vaguely-worded commerce clause.

It was disappointing to read Appellate Judge Silber's naive statement that the courts have to presume that Congress passes only Constitutional laws.

Is that not a basis for term limits on the federal bench, all by itself?

On Bret Baier's Fox News program, conservative pundit Charles Krauthammer described the four parts on which the Supreme Court will rule on the law:

- the Constitutionality of the mandate under the Commerce clause
- severability of the mandate from the remainder of the law
- standing of those bringing suit a priori to paying the tax for failing to purchase coverage
- Medicare funding related to the bill

Thus, several combinations of outcomes could occur from rulings on the various elements under consideration.

Justice Kagan is not recusing herself, although it is clear she was involved in support of the law as Solicitor General for the administration. However, one has to pragmatically ask if it would really do any good to have a 4-4 tie on these components. Or if the arm-wrestling over who would be a replacement ninth Justice would do the nation any good, either.

I'm a big proponent of things happening for a reason, and people receiving the justice they deserve. On that basis, if Kagan's participation results in the key rulings of the Commerce clause/mandate being upheld, and the it being severable anyway, so be it. Americans will reap what they sowed by electing the president and Congress that passed this monstrosity.

But, back to summer of 2012.

Some hold that if the mandate fails, and it isn't severable, so the law is unconstitutional, then Wonderboy can run away from the whole issue and claim no harm was done.

That's ridiculous on its face. As Krauthammer noted on Baier's program last night, Obama did nothing else of import for the past three years but pass ObamaCare and waste nearly a trillion dollars on useless 'stimulus' spending. Nobody's going to forget he spent so much time and capital on this law.

Will he, if so defeated by the court, then turn to run against the GOP House and the Supreme Court? Perhaps, but I don't think that will cut any ice with the independents who elected him.

The more interesting question is how a Supreme Court affirmation of the first two points will affect the November election. I suspect it will galvanize support for the COP presidential candidate and its Senate candidates, in hopes of overturning the whole mess.

The second-order issue then becomes how this plays out if Romney, the original architect of the ObamaCare approach in Massachusetts, is nominated by the GOP? Won't he appear hypocritical for railing against the Court and a plan he basically signed into law as a state governor?

However those mechanics play out, I think it's more instructive to see this as perhaps the final test of the Commerce clause as capable of completely gutting the Constitution which our Founders intended. If the Supreme Court greenlights this last firewall against Congress essentially being given the right to pass any law as Constitutional because the Commerce clause is omnipotent, we will wake up the next day to a different America. And the only way the prior one will be restored will be via a Constitutional amendment specifically altering the Commerce clause to remove its elasticity and overturn decades of bad law underpinning its misuse.

It could well be that we have to endure more liberal attacks on the Constitution, and perhaps another four or more years, in order to build sufficient support for a broadscale, Constitutionally-based roll back of what has been a 110 year battle to undermine the deliberately-minimal federal powers originally provided in the Constitution.

However, at this particular point in our nation's history, our economic position won't sustain the ramifications of  a liberal Democratic victory on ObamaCare by the Supreme Court.

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