An argument by Kennedy that could spell the doom of Obamacare

I said the other day that I did not want to indulge in speculation about how the Supreme Court would decide on the “Affordable Care Act.” I did not want to follow other conservatives in allowing my hopes to be raised only to see them dashed. However, remarkable exchanges in the third and last session of the hearings yesterday indicated the clear possibility of something I had not allowed myself to hope for: (1) that the Court will find the individual mandate unconstitutional, and (2) that as a result of (1), the Court will overthrow the entire law. This possible outcome was shown in a remark by Justice Anthony Kennedy, quoted by Jennifer Rubin (“Obamacare suffers a severability trainwreck at the Supreme Court”). Edwin Kneedler, the assistant Solicitor General defending the law, had been arguing that if the Court declined to sever the mandate from the rest of the law and overthrew the entire law along with the mandate, that would be an excessive use of judicial power. Kennedy, in a fascinating piece of reasoning, suggested it would be just the opposite:

KENNEDY: When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if … one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike—than striking the whole.

KNEEDLER: I—I—I think not -

KENNEDY: I just don’t accept the premise.

KNEEDLER: I think not, Justice Kennedy, and then I—I will move on.

Kneedler (what a name for a lawyer) seemed flummoxed by Kennedy’s argument and had no answer.

To expand on the argument, the mandate is needed to prevent insurance companies from being instantly wiped out. If the mandate is overturned, and the rest of the law remains in place, insurance companies will be instantly wiped out. Now I and other conservatives have argued that wiping out the insurance companies, gradually, not instantly, is the unstated purpose of the law, leading to the complete government takeover of health care. But of course wiping out insurance companies was not Congress’s stated intention! For the Court to overturn the mandate and leave the rest of the law in place would mean that the Court was in effect creating a law on its own, a law never approved by Congress, a law that would without a doubt destroy the nation’s private health insurance industry. Therefore if the mandate is found unconstitutional, the entire statute must be rejected as well.

Yes, as suggested the other day, Kennedy may be be playing games with our heads before sticking in the shiv and turning America into an unfree country. Also, this entire discussion hinges on the assumption that the mandate will be overturned, which the justices may ultimately decide not to do. At the same time, Kennedy’s logic was so compelling, and seemed to be echoed by other justices, that I felt it was worth examining.

- end of initial entry -

Kristor (see his important comment in March 2010 clearly explaining how the bill would kill the insurance industry) writes:

Kennedy is absolutely correct. This is hopeful news.

Sage McLaughlin writes:

Your post regarding Kennedy’s argument that the mandate is essential to the functioning of the whole bill gets down to the nub of the issue. As has been pointed out repeatedly, the reason the individual mandate was included in the bill was not to fix a problem in the private health insurance market at all. It was a necessary fix for Obamacare itself. The only problem it addresses is a problem that the remainder of the bill creates, namely, the prospect of an insurance death spiral in the health care market. The plaintiff’s case, not only about severability, but also constitutionality, rests on this very important premise and it seems to me to be totally unanswerable.

The Solicitor General is stuck arguing that Congress has the authority to compel people to engage in transactions, not in order to regulate interstate commerce as such, but in order to repair the massive damage done to commerce by Congress’ very own act. Think of it—the government engages in acts of wanton destruction, and then compels the people into servitude in order to rectify the problem “for the general welfare.” If this logic prevails, then there really is no longer any such thing as a government of strictly (or even loosely) enumerated powers in America.

Sage McLaughlin continues:

In a related context, Scalia incredulously asked counsel for the government if Congress had the power to force people to engage in commerce so that they could then be regulated under the Commerce Clause. The Solicitor General’s rambling answer was something to the effect that people are “in the health care market” anyway, just by virtue of being alive, so they’re engaged in “commerce” already, so the government isn’t really forcing them to do anything new. This is obvious, discreditable, self-serving sophistry, but that is their argument. (Of course, the whole premise of modern Commerce Clause jurisprudence—that anything which may have a butterfly-flapping-its-wings-in-China connection to interstate commerce is subject to the Clause—is pretty much the same kind of reasoning, so I see no principled reason why the Court will reject this new twist.)

Jonathan W. writes:

This case illustrates what I’ve been saying for a long time. Instead of trying to distinguish every latest leftist assault on the Constitution from the last outrageous “interpretation” (which is what conservatives have been doing for years), we should reject entirely the last 70 years of illegitimate Substantive Due Process, Equal Protection, and Commerce Clause jurisprudence [LA replies: What? No mention of the Incorporation Doctrine?], so as not implicitly to accept decades of liberal precedent.

Buck writes:

Sage McLaughlin writes: “Of course, the whole premise of modern Commerce Clause jurisprudence—that anything which may have a butterfly-flapping-its-wings-in-China connection to interstate commerce is subject to the Clause—is pretty much the same kind of reasoning, so I see no principled reason why the Court will reject this new twist.”

Professor Philip Bobbitt argues in his amicus brief that Obamacare doesn’t rest on commerce, but on national defense. Just like national highways, Obamacare is critical to national defense. It’s WMDs. Still looking


The common defense of our people changes with the risks and threats we must face. To prepare for the potential of a biological attack, the U.S. Congress may rationally conclude that we must have a comprehensive care and reporting system. To deny this power to Congress would make us vulnerable to the challenges of the 21st century to a degree that is even greater than the absence of a federal highway system would’ve rendered us vulnerable to invasion in the 20th century.

A person who is deterred from seeking medical care because he does not have health insurance unwittingly jeopardizes other people; in the future, this jeopardy can have mass consequences.

The consequence of these developments is that the healthcare of all persons living in America is bound together: the protection of every American is no stronger than the weakest protection of any American.

From the beginning of our government, the courts have sustained taxes although imposed with the collateral intent of effecting ulterior ends, which considered apart, were beyond the constitutional power of the lawmakers to realize by legislation directly addressed to their accomplishments.

LA replies:

Bobbitt’s argument sounds like a parody of pro-Obamacare arguments.

James N. writes:

Jonathan W. is quite correct about the need to reject the post-New Deal Commerce Clause jurisprudence of the Court.

However, we first must recognize that, to the Left and to most “conservatives,” the entire body of Supreme Court opinions has the effect of modifying the Constitution in same way that an Article V convention could do.

In their eyes, the entire corpus of U.S. Supreme Court decisions is to the U.S. Constitution, as the Talmud is to the Torah.

As long as this view prevails, the actual text of the 1788 Constitution, as amended, is of little importance.

March 30

Buck writes:

James N. said:

“the entire corpus of U.S. Supreme Court decisions is to the U.S. Constitution, as the Talmud is to the Torah.”

I don’t really understand what that means, but it made me think of this. [LA replies: The Torah (the Five Books of Moses) is the original text, analogous to the Constitution. The Talmud is the vast commentary on the Torah which in effect became the authoritative text in place of the Torah.]

There is an idea, I believe, that lies at the core of legal philosophy and thought, which in some way exists or should exist, consciously or unconsciously, in the minds of thoughtful judges and lawmakers. Its denial seems to manifest in the continuing reliance on or deference to stare decisis in order to avoid disrupting society by beginning again at square one.

The idea is that the “law” already exists, and it is perfect; and that our duty is to seek to discover it.

We continue to a take the easy way and to make the tradeoffs that are most acceptable to man. The more that man ascends in authority, the less perfect becomes the law.

I know that that is not a simple idea. But I do believe that it is true. Our written law is now unfathomable and unknowable by any man. We have surely passed beyond the point of an orderly change.

Posted by Lawrence Auster at March 29, 2012 12:56 PM | Send

Email entry

Email this entry to:

Your email address:

Message (optional):