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.