March 28, 2012

384 words 2 mins read

SCOTUS Reality Tour

By now you’ve seen the sensational headlines:

* People Are Saying That Obama's Healthcare Law Got Massacred At The Supreme Court Today*

Read more:** Here Is The Moment When Justice Alito Shredded Verrilli At The Obamacare Hearings* Read more:** Skeptical Kennedy signals trouble for Obama’s healthcare law** Supreme Court Health Care Law: Justices Come Down Hard On The Mandate

And so it goes.

Before we start dancing in the streets, let’s face a little reality. One man, it seems, holds the fate of ObamaCare in his hands. And that man does not necessarily believe the Constitution to be law, but guiding principle.

That one justice, Anthony Kennedy, seems to be looking for a reason to uphold ObamaCare and the individual mandate. Here’s what Orin Kerr at Volokh Conspiracy observed:Anthony Kennedy

Reading the tea leaves, it sounds like Justice Kennedy accepts the basic framework of the challengers that mandates are different and especially troubling. Instead of saying that mandates are therefore banned, however, Justice Kennedy would require the government to show some special circumstances justifying the mandate in each case. The answered question in this case is whether the special economics of the health care market justifies the mandate here.

What’s disturbing to me and other written-constitution types, is this: If the Constitution means anything, “special circumstances” don’t exist. If we are a nation of laws, heavy justification goes out the window.

I hope I’m wrong—not about what Kennedy’s looking for, but what Kennedy believes. Earlier in today’s arguments, Kennedy seemed to put the Constitution’s plain language before the “special circumstances” he considered later:

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way,** do you not have a heavy burden of justification to show authorization under the Constitution?** [emphasis mine]** **

Key here is that Kennedy’s demanding that the government show “authorization under the Constitution.” Later, he seemed to be demanding only a good argument for circumventing the Constitution.

If Kennedy believes, as any reasonable person would, that the Constitution prohibits the Federal government from forcing citizens to engage in commerce, then he must vote to strike down the individual mandate.

But I’m not convinced he will.