Not A Good Day For Obamacare
March 27, 2012 4 Comments
Last week I opined that Obamacare would be ruled constitutional by the Supreme Court. In that piece I reserved the right to change my position based on the arguments made before the court. Today the court heard arguments on the individual mandate. What is clear is that Obamacare is in serious trouble. There’s no reason for us to get overly excited yet but if the comments of the five Republican appointees is any indication Obamacare may be going down in flames.
Chief Justice Roberts was one of the two conservatives who was thought to be on the fence. It became clear today that he isn’t as on the fence as originally thought. He wondered whether the government could force citizens to buy cell phones because they might need emergency services one day. Scallia wondered if the government could force us to buy broccoli, after all it’s healthy. Justice Alito asked if we could be forced to buy prepaid funeral services, since we’ll all need to be disposed of. Roberts seems to be buying into this line of reasoning, that being if the government can force us to buy health insurance there isn’t anything they can’t force us to buy.
The real fence sitter though has always been Justice Kennedy. Kennedy has always been a moderate, though he has trended towards the right lately. It still isn’t clear which way Kennedy will vote. But his line of questioning was clearly in opposition to Obamacare. Kennedy said during today’s hearing:
But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.
And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.
Of course this doesn’t mean that Kennedy is going to vote a certain way. But his line of questioning and his statements were clearly in opposition to the Obamacare law. It’s entirely possible that he’s asking these questions and making these statements to see how the solicitor general responds. Kennedy could be swayed by his arguments. But in the very least, Kennedy is coming from a position opposed to Obamacare’s constitutionality.
What’s most interesting though is that the Supreme Court seems the siding with the very arguments Obama made against the individual mandate. You’ll recall Obama opposed the individual mandate before he supported it. This took place during the 2008 Democrat Primary wherein Obama supported an outright socialist model while Hillary supported an individual mandate. Obama made all the arguments the five conservatives on the Court made today.
Obamacare has a real shot at being ruled unconstitutional. We don’t know how the justices will react to the attorney’s arguments and we won’t get to find out until late June. But if their line of questioning is any indication, Obamacare is going down. Liberals must hold out hope that Kennedy can be swayed during the court’s private discussions after this week’s hearings. It’s always possible that a Justice can be convinced to vote a different way, it’s happened before. The odds of Obamacare being ruled unconstitutional have increased substantially though.
About Steven
If the individual mandate is struck down, do you believe that will roll over into the rest of the law? Or will they do this piecemeal?
That’s a good question. I think we’ll know more about that after today’s hearings as I think that’s the focus today. At least one lower court ruled that the individual mandate could not be separated from the rest of Obamacare because it was so integrated in the act. Hopefully if we have 5 against the mandate they’ll also rule that the entire law is unconstitutional. I think though that this may be the more difficult point for us to win.
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Lets pray that Judge Kennedy takes an even-handed approach guided by the goodness of God.. The Act offers some good changes (e.g. coverage for pre-existing conditions). As believers in God “How” we are to approach our critique of the Act. I do not attempt to answer “What” a so-called Christian view of the Act might be (frankly, I’m not sure such a thing exists). However, my answer is 3-fold (and I know my answer can be greatly improved by others). 1) in the formative process, we should invest fully in the process to make every effort to encourage and develop policy that is just, merciful, responsible, wise, etc. This is our calling — to live in the world fully to the glory of God and for the common good (loving our neighbor) 2) having done that, we should not expect any institution or legislation to be everything it can or should be. We cannot escape the presence of sin — it pollutes every person, every institution, every action, every product we create. If we disengage, we refuse to be the bearers of God’s grace. If we are indifferent, we refuse to pursue the common good. If we simply become angry that our expectations are unmet, we refuse to acknowledge that God is always at work even through our WORST ACTIONS — if the gates of Hell will not prevail against the Church, surely a bit of legislation is no match for God’s omnipotence. 3) We must resist the temptation to think that legislation restricts our ability or responsibility to live out our calling before God — regardless of what public policy is being adopted by governments, schools, corporations, etc., we are to live faithfully. We are to seek justice, love mercy, walk humbly, lay down our lives, in honor prefer one another, take up our crosses, love with the love of Christ. “Whether you eat or drink do all to the glory of God.” Faithfulness for us as Christians transcends nationality, culture, or legislation.
So, we all can and should critique the current Health Care Reform Act — commend it for its merits, object to its deficiencies including its immoral implications. Of course I am not the best person to offer that critique, and I believe (very genuinely) that informed Christians may and will disagree about the strategy and structure of the Act.
An an over-emphasis on individual rights and unrestricted freedom of choice ignores what the Bible says about human nature — THE HEART IS DECEPTIVE AND WE ARE SELFISH. Even though I firmly believe in freedom as a political ideal, freedom does not guarantee that we will choose wisely and live righteously. So, the other side of the tension is corporate responsibility and accountability. However, overconfidence in organizations (like government, corporations) ignores what the Bible says about our bent toward the abuse of power. Our federal government was founded with an appreciation of this tension — our system joins significant (but not unrestricted) personal liberty with institutional accountability. For this I”m deeply grateful. But, many Christians, just like our fellow citizens, tend to gravitate to one pole or the other — wildly championing the “righteousness” of personal freedoms or foolishly being overconfident in the “righteousness” of institutions that promise to do good.
I hope this writing finds you in good spirits.
Grace and peace,