Justice Kennedy and the Fate of ObamaCare

By Joseph Ashby

It's been one year, six months, and eight days since it happened.  White-hot tempers have cooled.  Dire predictions are rarer.  Unlike many tumultuous situations, which in retrospect appear unworthy of our ire, the intensity that accompanied the passage of ObamaCare was well-suited to the size of the cause.

Throughout the Western world, government-run health care has served to catalyze a permanent leftist political climate.  Unlike the relatively limited nature of our current welfare state (which is already bankrupting the nation), the Patient Protection and Affordable Care Act is designed to reach across all age demographics and into nearly every income bracket.

Because of its near-limitless reach, if fully implemented, ObamaCare will quickly become a political force surpassing even Social Security and Medicare.  Once that happens, the only way to win elections will be to promise not to touch government health care.  Every politician will have to accept and even endorse issues that are now championed only by the far left.

The morning after ObamaCare passed, the Los Angeles Times announced that the Democrats had won a 100-year war, but the war didn't end.  Once the law passed, Americans began a two-pronged effort to sabotage the left's well-laid plan, and thereby rescue America from an ominous fate.

The success of the first prong, judicial action, will likely be determined by late next spring.

Earlier this week, the U.S. government failed to file a request for re-hearing of their case before the full panel of the 11^th Circuit Court of Appeals.  Failure to file for the re-hearing likely means one of three things.  The Obama team wanted no part of the unfriendly 11^th Circuit, is willing to accept a version of ObamaCare without the insurance purchase mandate (a possibility Rush Limbaugh pointed out Wednesday), or believes it has a winning argument to take to the Supreme Court.

With four reliable liberals and four reliable constitutionalists on the Supreme Court, many consider the court's decision to rest with Justice Anthony Kennedy.  Kennedy's recent votes are both cause for hope and concern for those fighting ObamaCare.

For example, in the 2005 Kelo decision, Kennedy sided with the liberal wing of the court.  The decision allowed a municipal government in Connecticut to seize private lands through eminent domain and hand the land over to other private interests.  Kennedy wrote in a concurring opinionthat as long as there was a proper "rational-basis test" which justified government taking the land, then the use of eminent domain was constitutional.

If Kennedy finds the health insurance mandate "rational" or a necessity to address health care costs, the unthinkable (but very possible) may occur: ObamaCare may get the SCOTUS stamp of constitutional approval.

Opponents of the president's health care law will find the Citizens United decision more encouraging, both because Kennedy fell on the side of the Constitution and because of its analogous similarity to ObamaCare.  In both Citizens United (free speech) and the Affordable Care Act (right to property), the law in question gives the federal government such broad power that even dependable moderates like Kennedy cringe.

The most iconic moment of the Citizens United case came during oral arguments, when Chief Justice John Roberts questioned deputy solicitor general Malcolm Stewart on what types of speech the government could outlaw:

Roberts: If it's a 500-page book and at the end it says, "so vote for X," the government could ban that?

[Snip]

Stewart: If you have Citizens United or General Motors using general treasury funds to publish a book that at the outset, for instance, that Hillary Clinton's election would be a disaster for this --

Roberts: No, no. Take my hypothetical. It doesn't say at the outset. "Here is a..." whatever it is. "This is a discussion of the American political system." And at the end it says, "Vote for X."

Stewart: Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds.

Roberts: And if they didn't you could ban it?

Stewart: If they didn't, we could prohibit the publication of the book using the corporate treasury funds.

Several months later, the Court heard a second oral argument on the same case.  In the second round, then-Solicitor General (now Supreme Court justice) Elena Kagan was asked about the potential that the Federal Election Commission could ban books.  Kagan responded that the FEC had the power to ban books, but has never and most likely would never use that power.  A somewhat shocked Justice Antonin Scalia tersely responded, "We don't put our First Amendment rights in the hands of FEC bureaucrats."

After the oral arguments, Kennedy voted with the originalists on the court.  The majority opinion, written by Kennedy, was laced with statements that suggested he was greatly affected by the back-and-forth over book-banning.  "When Government seeks to use its full power,"wrote Kennedy, "including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought."

When ObamaCare goes to the Supreme Court, the Scalias and Robertses of the bench will no doubt pin down the administration lawyers on the individual mandate.

If the government can force citizens to buy health insurance, what will stop the Congress from mandating the purchase of cars, homes, food, or any number of products or services?  There is no good answer to that question because, if we must buy one product, there is no sufficiently definable limit on congressional power regarding our personal purchasing decisions.  We can hope Justice Kennedy will be greatly affected by that argument as well.

But to depend on Anthony Kennedy is a little like a soldier who takes cover behind a sapling during a firefight -- the sapling may stop the bullet, or it may not.  Which is why the second prong, the legislative repeal of ObamaCare, must continue.

Even if the Supreme Court declares the individual mandate unconstitutional, there is no guarantee that the justices will throw out the entire law.  The American people would be left with the taxes, regulations, massive Medicaid expansion, and other harmful provisions of the health care law.  If that is the case, the defeat of ObamaCare through the republican process is our only avenue.  The 2012 elections will be our best shot (and maybe our only real chance) of stopping the law.

Obama and the wordsmiths at the White House think themselves quite clever dubbing ObamaCare "Obama cares."  The truth is that Obama doesn't care.  It's incumbent upon the rest of us to stop this destructive law before it's too late.