Obamacare - A Big Week with UPDATES
Obamacare will die an inglorious death, suffer a catastrophic wound, or receive a constitutional stamp of approval this week. Thursday should bring the decision, regardless of its result.
Predictions? We have said from the beginning that the inclinations of Justice Kennedy will determine the outcome. How do you read the mind of a 75 year old justice appointed for life? Much has been made of his severe questioning at oral argument. Indeed, it was not until after the whithering oral argument of Obamacare that many of its supporters even considered the possibility that all or a portion of it could be overturned.
We firmly believe Obamacare is unconstitutional in its entirety, but the last time we checked, we had no vote on the Supreme Court. So, what is our prediction?
We think Justice Kennedy will not betray his principles on individual liberty. These same principles placed him in the majorities on the campaign finance decisions (rightly decided in our view) as well as the abortion decision in Casey (wrongly decided in our view). That is, he will strike down the mandate as an unconstitutional infringement upon the individual liberty protected by the Constitution. Thus, the Court will strike down the mandate in a 5-4 decision. What it does after that is a tougher call. Will Justice Kennedy go whole hog and strike down the entire law?
We say yes. Perhaps, we are just being optimistic, but we think the thought of picking and choosing which sections of the law to overturn and uphold, in the absence of any severability clause or any common sense means to do so, will be even more distasteful than striking down wholesale this act of Congress (as courts are generally predisposed not to do). This decision will also be 5-4.
Could we be wrong? Of course. We make no claim on the skills of Professor X or any other telepath. We just like to think positive. If we are disappointed, then November becomes that much more important.
But, even if the law is struck down in its entirety, we should temper our celebrations and note that the decision was 5-4. One vote. Yes, elections matter.
But, it also says something that four learned justices of the Supreme Court think that a mandate is constitutional. They do not lack any education about its meaning. They know exactly what it means. More precisely, they feel no fidelity to its meaning. They do not believe they or anyone else must be bound to it.
Many call this view a "living constitution" approach. I disagree with that analogy. Something alive has meaning. You feel a certain attachment or duty toward something living. No, the Constitution is as dead to them as the Code Hammurabi. It is only good as a study of archeology. This is a serious problem and no amount of study or education of those holding it will make it go away. It must be contested in the marketplace of ideas and defeated like so many bad ideas from the past. That WILL take education and study, on the part of those who still cherish and honor the Constitution. Let us make that our goal regardless of Thursday's outcome.
UPDATE - It was announced today that Chief Justice Roberts is the author of the opinion and it will be released Thursday. Dwindling hope for Obamacare supporters is that the CJ appointed himself to write opinion upholding it so he could have say on details. We say that mandate is toast! Still unknown is the rest of the law.
UPDATE2 - OH IT"S A TAX!! More to come after we wipe away the tears!
UPDATE3 - More detailed analysis is on the home page. Reading over my predictions, I am shocked that I was so accurate and so wrong! I had the mental state of Justice Kennedy squarely pegged and missed Justice Roberts take by a light year.