Now that the Department of Justice has petitioned the Supreme
Court to review Florida v. HHS, the high-profile challenge
to Obamacare whose plaintiffs include officials of 26 states, most
experts believe the justices will take up the case this term and
issue their decision next summer. This possibility has been greeted
with no small amount of glee by the law’s opponents. But we should
be careful what we wish for. If the Court rules Obamacare or its
mandate unconstitutional, it would definitely be the ultimate
“twofer” for conservatives, polishing off an atrocious assault on
individual liberty and subjecting the President to a devastating
defeat in the midst of his reelection campaign. But this is far
from inevitable. The deciding vote will probably be cast by a
justice whose opinions have been all over the ideological map.
Progressive mythology notwithstanding, Supreme Court
justices don’t robotically adhere to their general ideological
bent. This is why, in Bush v. Gore, the 7-2 majority that
ruled the Florida recount unconstitutional included two liberal
justices. Nonetheless, it isn’t difficult to imagine which way
eight of the nine current justices will come down on the Obamacare
question. Justices Kagan, Ginsburg, Breyer, and Sotomayor will
almost certainly favor upholding the entire law, including its
egregious mandate. Justices Roberts, Scalia, Thomas, and Alito will
probably want to strike down the mandate, although it’s harder to
predict their opinions concerning its
severability from the rest of the law. Anthony Kennedy,
however, is the Supreme Court’s sole remaining swing vote, and it
is impossible to predict what he will do.
He has on many occasions produced opinions about which
conservatives have no cause for complaint. He was, for example, not
merely among the seven justices who ruled the 2000 Florida recount
unconstitutional, he was one of the five justices who said that the
state had run out of time to contrive an alternate method of vote
tabulation. Likewise, Kennedy joined the majority in District
of Columbia v. Heller, which struck down the D.C. handgun ban
pursuant to the Second Amendment. Predictably, the latter decision
incurred the wrath of progressives everywhere, many of whom singled
out Kennedy for derision concerning a
remark he had made during oral arguments about the need for
“the remote settler to defend himself and his family against
hostile Indian tribes and outlaws, wolves and bears and
grizzlies.”
Justice Kennedy has also sided with liberal majorities in
a variety of important cases, including the infamous Kelo v.
City of New London, in which the Court permitted a local
government to steal a piece of real estate from a private
individual and give it to a corporation. The tragic irony in this
case is that the “economic development” ostensibly served by New
London’s land grab has never taken place. Five years later, the
stolen property is being used as a
debris dump: “Pfizer, the intended beneficiary of the land
theft, walked away years ago from their development plans. Now, to
add new insult to injury, the vacant lot is a dump. Literally.” In
other words, Kennedy participated in a gross violation of private
property rights and the pretext for this atrocious decision has
long since evaporated.
Significantly, Kennedy also voted with the majority in
Gonzales v. Raich, a ruling that will certainly figure in
the Court’s deliberations concerning the individual mandate. This
case involved Angel Raich, who had been growing medicinal marijuana
for his own use on his own property in a state where this was
legal. In 2005, however, the Supreme Court ruled that the federal
government could prohibit him from doing so pursuant to its power
to regulate interstate commerce. This decision was, as Ilya Somin
of George Mason University
puts it, “easily the broadest-ever Supreme Court interpretation
of the Commerce Clause.” And, because Congress claimed the mandate
was an exercise of its power under that very clause, the DOJ has
cited this ruling in virtually every brief it has filed since it
began defending Obamacare last year.
Kennedy’s record, then, is not merely incoherent. It also
suggests that he believes the Constitution gives the federal
government very broad powers via the Commerce Clause. If the Court
upholds the individual mandate, it will increase federal power over
your day-to-day life to a much greater degree than did even the
Raich ruling. Whereas the latter regulates an activity,
growing pot, Obamacare’s mandate regulates something you are
not doing. As constitutional law professor Randy Barnett
explains it: “[T]he statute speciously tries to convert
inactivity into the ‘activity’ of making a ‘decision.’ By this
reasoning, your ‘decision’ not to take a job, not to sell your
house, or not to buy a Chevrolet is an ‘activity that is commercial
and economic in nature’ that can be mandated by
Congress.”
In other words, if the Supreme Court acquiesces in
Obamacare’s specious justification for the mandate, it means that
there are no real limits to federal power. And this is where your
personal liberty will be intimately affected by Justice Kennedy’s
view of the mandate. If Congress can order you to buy insurance, it
can order you to do anything. As U.S. District Judge Roger Vinson
put it last year, “If they decided everybody needs to eat
broccoli because broccoli makes us healthy, they could mandate that
everybody has to eat broccoli each week.” Assuming the Court does
grant the DOJ’s petition, the only man standing between you and
that kind of tyranny is a 75-year-old swinger from Sacramento,
California. Anthony Kennedy could well be the ultimate arbiter of
your personal liberty.
