“I’ve only mispredicted one big Supreme Court case in the last 20 years. That was Bush v. Gore… If they decide this by 5-4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.”
~Akhil Amar “legal rockstar”
If the Supreme Court Justices rule against Obamacare in a 5 to 4 manner on Thursday … it will not be because an “individual mandate” was unconstitutional … it will be because politics has so thoroughly saturated our legal process that the justices might as well wear red and blue so we know which team they’re on. We suspect that Justices Thomas, Scalia and Alito are likely to vote to mandate the entire law as unconstitutional. Clarence Thomas’s wife makes millions by working to overthrow the law and he doesn’t just vote as a “conservative” – he literally votes for the Republican party. Antonin Scalia has done intellectual gymnastics to substantiate how his positions have flip-flopped from prior rulings to his suspected vote.
The only hope is that Justice Kennedy who is a conservative and regularly votes with the conservative block will vote with character instead of politics in mind. And that might mean Chief Justice Roberts votes with him to have a less divisive court. The facts are that our first Congress … the founders of the Constitution itself have in fact put into law an individual mandate on three separate occasions at a federal level. This mandate required American citizens to purchase products without an option. George Washington signed into law the following three individual mandates:
- In the Militia Acts of 1792 – citizens were required to buy guns, ammunition and the necessary accessories
- In 1790 during the very first Congress – ship owners were required to buy medical insurance for their sailors
- In 1798 – sailors were required to purchase hospital insurance
Ezra Klein gives all the details and points out a great quote in this must read HERE:
“Not only did most framers support these federal mandates to buy firearms and health insurance, but there is no evidence that any of the few framers who voted against these mandates ever objected on constitutional grounds. Presumably one would have done so if there was some unstated original understanding that such federal mandates were unconstitutional.”
~Einer Elhauge, a professor at Harvard Law
Eric Spiegelman writes HERE:
Where Kennedy stands on all this is something of a mystery. Even his own former law clerks can’t seem to agree. About as close as you can get to insight into the way Kennedy might rule is his concurring opinion inUS v. Lopez, in 1995. In that case, the Supreme Court struck down a federal law as being outside the scope of Congress’s powers under the commerce clause. He wrote: “were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.” You can read that to be in favor of the individual mandate—or against it.
People really seemed to think Kennedy would be pro-mandate, at least until oral arguments, when he levied a series of tough and highly skeptical questions at the Solicitor General arguing the case. But even then, closer inspection revealed some doubt. Nobody knows for sure which direction Justice Kennedy, who is presumablythe fulcrum on which this case balances, will tip the scale.
