“they can roll the dice and try to push this straight up to the Supreme Court and risk losing everything just before Election Day.”
I really think there are five solid votes on the Court to invalidate this (Kennedy and the four conservatives). Stevens is pretty reliable on Commerce Clause cases, so he would be the sixth if he is still there. I had thought Breyer might be solid on this, but I just saw him in a debate with Scalia and he kept talking about the Judge’s role in determining the purpose of the constitution, based on the values of the time, which made me less sanguine about him. I also remembered he was a staffer for Teddy Kennedy on the Senate Judiciary Committee prior to going on the Appeals court. And Kennedy’s pet issue was nationalized health care. This case will be a real test of Breyer’s intellectual integrity. Ginsburg and Sotomayor are wild cards, but I would tend to see it as 6-3 or 5-3. And if they are intellectually honest, it could be 9-0.
Finally, we are going to be hearing from the MSM that to strike the mandate down would be a stunning example of judicial activism. Not true. Striking it down would be protecting the rights of the people from an abuse of power by Congress through their attempted transmogrification of the Commerce Clause. Striking it down would vindicate the 9th Amendment of the Bill of Rights as well.
Failing to strike it down would be the STUNNING ACT OF JUDICIAL INACTIVISM, a dereliction of the Court’s duty to protect the people from a Congress which exceeds the powers granted it by the Constitution. It would represent judicial activism by inaction.
Since the Court was willing to strike down the lion’s share of McCain Feingold, which only LIMITED (but by no means eliminated) political speech in violation of the First Amendment, I believe the Court would be inclined to strike down the Mandate in ObamaCare, which not only limits but ELIMINATES the freedom not only to engage in commerce (which has existed since the founding of the Republic and before) but NOT TO ENGAGE IN COMMERCE. Congress does so by misconstruing its authority under the commerce clause, believing that the power to “regulate”, which always presupposes an activity to regulate, extends to inactivity and that one who is doing nothing is nevertheless engaging in commerce. I do not believe that the Court can possibly be intellectually dishonest enough to do otherwise. In fact, I think the Justices who, on policy grounds, favor National Health Care will have to admit that it should have been enacted via a public option and financed via the income tax. And people should always have been free to opt our of it.
Had they done it this way, it would have been constitutional, and the Government could have made the public option so attractive that they would have eventually driven the private insurance companies out of the field, achieving their goal of a single payer system. Instead, they were forced to choose this bastardized version, an unprecedented individual government mandate married to private insurance, which is going to run afoul of the Commerce Clause.
This is pretty arcane stuff, but I thought I would ping you in case you know anyone who is interested in some of the Constitutional issues surrounding Obamacare. Post 18 is a little easier to get through than the main article.
Very nicely summarized. As it is Obmacare is an economic time bomb. Even worse with the individual mandate stricken. Will the remedy be the whole bill tossed?