|Why Supremes Will Nix ObamaCare|
By Quin Hillyer
Tuesday, November 22 2011
The Supreme Court’s agreement to consider four separate issues regarding ObamaCare has given rise to fears, mine included, that the court would produce some sort of unsatisfyingly fractured ruling that leaves defenders of liberty sputtering in frustration. The unfortunate model would be the abortion decision, Planned Parenthood v. Casey, in which the court could muster only a plurality for its controlling decision.
The prediction here is that while the concerns are intellectually justifiable, they will not be borne out in the court’s decision. When all the smoke clears, the Supreme Court will rule, unambiguously, that ObamaCare’s individual mandate is unconstitutional.
With that central issue decided, it will matter less if decisions on the other three issues appear somewhat fractured. The closest call will be whether the mandate is “severable” from the rest of the law, and therefore whether only the mandate is invalidated (if it’s severable) or if the whole law must fall (if it’s not severable).
One issue at a time, here’s an educated guess as to how this all plays out.
First, it seems safe to predict that none of the four “liberal” justices will dare overturn ObamaCare. Not one of them previously has evinced the slightest doubt that Congress’ raw power over almost any economic matter is effectively unlimited.
Second, it would be surprising if Justice Clarence Thomas doesn’t use this occasion to write a separate opinion calling for overturning the infamous Wickard v. Filburn ruling that so egregiously expanded Congress’s “Commerce Clause” powers in the first place.
Between those two legal parameters is where the other four more “conservative” justices will probably decide the case.
The first issue is whether the penalty for ignoring the mandate, to be collected by the IRS, is to be considered as if it is a “tax” for purposes of the Anti-Injunction Act, which bars consideration of the constitutionality of a tax before the tax is actually put into effect. If the mandate’s penalty is a tax, then, the court could not rule on it until after the mandate is implemented – in 2014.
Notwithstanding an exhaustive attempt by otherwise conservative appeals court judge Brett Kavanaugh to argue that the Anti-Injunction Act applies, it is noteworthy that Kavanaugh is such an outlier on this issue that even the administration itself abandoned this argument before the U.S. Court of Appeals for the District of Columbia. At least five justices of the Supreme Court will agree the mandate is in no way a “tax,” and thus dismiss this objection.
Next up will be the central question about the mandate’s constitutionality. Facile analysis says Justice Anthony Kennedy is the key vote here, but as Virginia Attorney General Ken Cuccinelli told the Washington Examiner nearly a year ago, Kennedy “has been rock solidly consistent in support of structural federalism, so it is actually a little bit hard for me to see him breaking from that tradition of his.” Other top analysts have told me the same. To my mind, the key consideration will be Kennedy’s elaboration of his own standard from U.S. v. Lopez, where he wrote that “[t]he statute now before us [improperly] forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term” [my emphases added].
Kennedy himself having insisted on “activity” as a fundamental consideration in Commerce Clause jurisprudence, it is hard to believe he would do anything other than decide that a “mandate” (not an ordinary “regulation”) to counteract inactivity is “beyond the realm of commerce,” and thus outside of Congress’ powers.
Others worry that Justice Antonin Scalia’s somewhat sweeping language in Gonzales v. Raich, in which he upheld a federal anti-marijuana statute, might indicate he would uphold the mandate. Perish the thought. On other issues of federalism and of restrictions on congressional “Commerce” power, Scalia is even more firmly against congressional overreach than Kennedy.
The third issue then becomes whether the mandate is severable. This one is a toss-up, where Kennedy really is in the middle. The Obama administration, though, has hobbled itself by otherwise arguing that the very reason the mandate is allowable is because the whole rest of the law depends on it. Methinks the court won’t square the administration’s own circular logic: The mandate will be adjudged unseverable, and the whole law will fall.
If the whole law falls anyway, the last issue – whether ObamaCare’s Medicaid provisions unconstitutionally “coerce” or “commandeer” the states to spend funds they otherwise would neither spend nor collect – would become moot. But because the severability question is such a close call, it’s worth considering what would happen if only the mandate, but not the rest of the law, is invalidated.
Here’s where a curious split decision could rear its head. Scalia and Kennedy both have shown a willingness to invalidate federal coercion of state officials (see Printz v. United States). All five conservatives might therefore rule that the design of the Medicaid expansions risks violating the rule against coercion, and that the rule is indeed judicially enforceable in theory – but Kennedy might not be convinced that in practice the provision actually rises to the level of coercion. Result: Via his concurrence in part but not in whole, the Supremes could remand this issue back to lower courts for more extensive findings of fact as to whether the states’ officials, in actually applying the provision, would effectively be unconstitutionally commandeered by the Feds.
So, to recap my predictions: 1) not a tax in any way; 2) an unconstitutional mandate; 3) a toss-up on severability; and 4) if not mooted by the severability decision, the Medicaid coercion issue would be remanded to lower courts.
Regardless of questions three and four, the effective result would be ObamaCare in ruins. As well it should be, as a horrendous assault on personal liberty.
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