Health insurance

Will Kennedy Vote Against the Health Insurance Mandate?

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Last week Damon Root wondered whether there are five votes on the Supreme Court to overturn the Patient Protection and Affordable Care Act's requirement that every American obtain government-approved health insurance. Clarence Thomas and Antonin Scalia are the justices most likely to vote against the mandate, since they have long records of worrying about the ill-defined limits of Congress's power to "regulate commerce…among the several states." Assuming that John Roberts and Samuel Alito are also on board (not necessarily a safe assumption, as Damon noted), Anthony Kennedy could provide the swing vote, as he often does, which makes his concurring opinion in U.S. v. Lopez newly interesting. That is the 1995 decision in which the Supreme Court overturned a federal ban on gun possession in or near schools, concluding that accepting the arguments in favor of the law would require it "pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." It was the first time in 60 years that the Supreme Court had overturned a federal law on Commerce Clause grounds.

Kennedy's lukewarm concurrence in Lopez is not exactly encouraging. He wrote a separate opinion (joined by Sandra Day O'Connor) to highlight his reluctance to impose limits on Congress's power:

The history of the judicial struggle to interpret the Commerce Clause during the transition from the economic system the Founders knew to the single, national market still emergent in our own era counsels great restraint before the Court determines that the Clause is insufficient to support an exercise of the national power. That history gives me some pause about today's decision.

Although Kennedy concluded that federalist principles required that states be free to determine their own policies in "an area of traditional state concern," his summary of the Court's jurisprudence clearly favored an expansive reading of the Commerce Clause, treating a narrower (and more historically grounded) understanding focused on the elimination of interstate trade barriers as impractical and economically obsolete. In contrast with the majority opinion's emphatic concern about erasing the "distinction between what is truly national and what is truly local," Kennedy seemed more worried about being insufficiently deferential to Congress, venturing to say only that "our cases do not teach that we have no role at all in determining the meaning of the Commerce Clause."

Kennedy did hint at the dangers posed by the "substantial effects" doctrine, under which Congress may regulate purely intrastate activities based on tenuous or hypothetical connections to interstate commerce. "In a sense," he wrote, "any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far." (In his concurring opinion, Clarence Thomas went much further, warning that "our case law has drifted far from the original understanding of the Commerce Clause" and calling for reconsideration of the "substantial effects" doctrine, lest it provide a "blank check" for congressional action.) Despite his reservations about defining the boundaries of the Commerce Clause, Kennedy joined the majority opinion in U.S. v. Morrison, the 2000 case in which the Court overturned a federal civil remedy for victims of gender-motivated violence. This time he did not feel a need to file a separate opinion.

One reason Kennedy might be comfortable voting to overturn the health insurance mandate is that it goes farther than any purported regulation of interstate commerce the Court has ever approved by targeting the passive inactivity of failing to buy something that Congress thinks everyone should have. Since every law that has been upheld under the Commerce Clause has involved some sort of activity (even if it was limited to growing plants for personal use), the Court need not reconsider its precedents to reject the insurance requirement. As I argue in my column tomorrow, that is both the main advantage and the main disadvantage of the activity/inactivity distinction embraced by U.S. District Judge Roger Vinson last week and U.S. District Judge Henry Hudson in December.

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  1. The history of the judicial struggle to interpret the Commerce Clause during the transition from the economic system the Founders knew to the single, national market still emergent in our own era…

    I don’t think “interpret” means what he thinks it means.

    1. Also, this whole assertion …

      the transition from the economic system the Founders knew to the single, national market still emergent in our own era

      … strikes me as an instance of begging the question. Egregiously so.

      1. It’s also an instance of not knowing when to STFU, that invaluable but rare quality in SCOTUS justices.

      2. “. . . single, national market . . .” No such thing.

        1. Right. And there’s a solid argument that the only way there could be such a thing is via government regulation and control.

          That’s why I say he’s begging the question. He’s essentially saying, “Government should control the market, because government has come to control the market.”

          1. Isn’t respect for the ghost of injustice past the essence of stare decisis?

    2. And just exactly how does the “transition from the economic system our Founders knew” to “today’s single national market” cause non-commercial activity magically to become “commerce?”

      1. And just exactly how does the “transition from the economic system our Founders knew” to “today’s single national market” cause non-commercial activity magically to become “commerce?”

        It does not.

        This is why the Matthew Shepard Hate Crimes Law exceeds Congress’s Article I powers.

  2. 1. General welfare

    2. Regulate commerce

    3. Necessary and proper

    4. Individual mandate!

  3. “…counsels great restraint before the Court determines that the Clause is insufficient to support an exercise of the national power. ”

    Now, I’m not a Constitutional scholar or SC Justice, but I think it’s laughable to suggest we need worry about the horribly burdensome shackles restraining the exercise of national power. That poor, helpless national g’ment, whoever will free it?

  4. I see on Drudge that the House has scheduled a vote to block ObamaCare funding.

    Given the current state of play, namely, that ObamaCare as a whole has been voided as unconstitutional by an opinion that is, as of yet, unappealed and unstayed,

    Doesn’t the Congress have Constitutional duty to block funding of anything that is unconstitutional?

    1. Doesn’t the President have a Constitutional duty to follow the rule of law?

      Sebilius and Salazar should be in shackles, together.

      And you thought that picture of Jane and Sidney was an eyesore…

      1. King Obama doesn’t give a crap about following the law. Remember, this is the guy who violated bankruptcy law in handing GM to the UAW.

        1. Le etat c’est moi, salope.

      2. Doesn’t the President have a Constitutional duty to follow the rule of law?

        Yes, he does, and that includes abiding by injunctions.

  5. If the Supreme Court allows the mandate to stand, I think they should first go to the National Archives, dig out the original Constitution, take it to the Mall, and burn the fucker.

    1. Why wouldn’t they just wipe their asses with it as they’ve been doing for so many years now?

      “Aroo! Maybe so. But I know a place where the Constitution doesn’t mean squat!”

      1. “Aroo! Maybe so. But I know a place where the Constitution doesn’t mean squat!”

        Say what?

        1. Futurama… fear the head of Nixon!

      2. In the event that the mandate is allowed, I fear that the Constitution’s utility as toilet paper will be completely marginalized. See, it won’t be able to absorb any additional bullshit.

        1. It’s utility as toilet paper is already marginal due to repeated use.

          Burning it would be an act of decontamination.

          1. That act would subject to a carbon tax; excess CO2, yanno.

            1. The Supreme Court is above such mundane and petty considerations.

      3. Agreed. If this is allowed to stand, there will be no apparent limits on government power.

  6. Are Health-Care Waivers Unconstitutional?

    I have to take a 3rd shot at Larry Tribe’s op-ed: That big word “choice.”

    From the comments to that and the other two posts:

    Isn’t being unemployed, and not taking any ditch digging job available, the activity of going on public assistance, thus allowing Congress to mandate you work?

    Isn’t getting an abortion the economic choice to have the children of others pay your Social Security?

    1. I think that even though they’re obviously unconscionable, Obama’s waivers can probably be done constitutionally because of the pardon power. IE, he can pre-emptively pardon his cronies for violations of the act.

      -jcr

  7. This is the biggest vote in S. Ct. history. With his deciding vote, Anthony Kennedy can ensure that we get down to the business of fixing things that aren’t broken while cementing the pragmatic efficacy of federal administrative power. Anthony Kennedy, you can be a hero for the No Label ages!

    /dumbfuckery

  8. If I were a betting man I’d say the decision comes down 6-3 with Kennedy and Roberts voting with the liberal bloc. Alito and Thomas are principled on the commerce clause. Scalia isn’t at all principled (Raich) but since this is a Democratic initiative he’ll be on board.

    Kennedy is a weak-tea centrist, and Roberts is a state-power conservative through and through.

    1. Glad to see someone mentioned Gonsalez v. Raich, and the complete double standard of Scalia. To call him a safe bet, as this article does, is a joke considering his b.s. argument in that case.

    2. I think you are being too pessimistic.
      Alito, Thomas, and Scalia may be safe bets, but Kennedy and Roberts are at least 50-50 each.

      Also, can we be 100% sure that the liberal justices will vote in favor of the mandate?

      1. I think yes. A vote against the mandate is a vote against statist paternalism.

      2. Yes, we can be 100% sure. Ginsburg, “The Wise Latina”, The Hobbit, and The Ice Cream man will do legal gymnastics to find something in the “Living Breathing Silly-Putty” document, or more likely, stare decisis to do so.

      3. Anyone who doesn’t want millions of dead poor people in the street would vote for the mandate.

        1. Hahahahahahahaha!

        2. That’s not just stupid that’s Cass Sunstein stupid!

        3. Guys. Pretty sure it’s a spoof. Tony isn’t that honest with his comments.

      4. Yes, because they are incompetent imbeciles who have no respect for individual liberty and Consitutional limits on government power.

  9. And for your amusement:
    http://blog.nola.com/stevekell….._2011.html

  10. Knocking down the individual mandate on commerce-clause grounds alone will not cure what ails you. The majority also has to go along with the “not-a-tax” argument, and adopt the “no severance” interpretation of the rest of the statute. You must hit the trifecta as in Florida, this time with a Supreme Court majority:

    1)commerce
    2)tax
    3)severance

    Miss on either of the first two, and the mandate stands. Miss on the last one, and single-payer will be built on the smoking crater of the private-insurance death-spiral.

    Good.
    Luck.
    With.
    That.

    Bitchezzzz!!!

    1. Danny|2.8.11 @ 8:07PM|#
      “Knocking down the individual mandate on commerce-clause grounds alone will not cure what ails you. The majority also has to go along with the “not-a-tax” argument, and adopt the “no severance” interpretation of the rest of the statute. You must hit the trifecta as in Florida, this time with a Supreme Court majority:”

      Could be, and it wouldn’t be the first time slimy bastards got their way, would it?

  11. I don’t think they’ll buy the really-a-tax argument. The record, not to mention the statute, is replete this-is-absolutely-not-a-tax.

    I think, if they rule the mandate unconstitutional (big if), they will do some severing. Parts of the law will be left, but the important parts (federal control of private insurance) will not be severed and will be struck.

    Among the outrages to come is that Kagan will blatantly violate the rules of judicial ethics, and will sit on a case that she advised one of the parties on before taking the bench.

    1. What’s the point of severing then? Without the mandate, the rest is a house of cards.

      I realize the repubicans would like that, as it would save them a lot of legislative headaches of rehashing such brown rot as making 26 year-olds children and pretending that “insurance” for pre-existing conditions is not welfare.

      The Hobbit will simply be repaying Sauron for nominating her to the bench. Ethics? Pfffft. SCOTUS is nothing more than the third legislative branch. Sorry Schumie! And big fat fuck you to John Marshall, I hope you are rotting!

  12. Among the outrages to come is that Kagan will blatantly violate the rules of judicial ethics, and will sit on a case that she advised one of the parties on before taking the bench.

    The ethics of the left getting what they want outweigh the mere “ethics” of personal behavior. STFU, peasant.

    1. Ethics, to god-damned hell with ethics! We have no ethics. In fact, we don’t need ethics. I don’t have to show you any stinking ethics, you god-damned cabr?n and ching’ tu madre!

      1. Just as long as you’re not mi madre.

  13. Kennedy seemed more worried about being insufficiently deferential to Congress, venturing to say only that “our cases do not teach that we have no role at all in determining the meaning of the Commerce Clause.”

    The SCOTUS is constantly lamenting the current state of law and then throwing up their hands, saying the proper course of action is through the legislative process (see Kelo, Raich). If they showed as much deference to Article V, they wouldn’t have to be concerned about taking it upon themselves to “expand” an “obsolete” commerce clause.

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