Behind Justice Kennedy, Supreme Court is Likely to Strike Down Obamacare


Yesterday’s argument regarding the constitutionality of the individual mandate underscored two key points: First, the Constitution serves to limit government power; and second, those limits can only be enforced by a properly engaged judiciary.

The dominant theme of the argument was whether the power asserted — to force people to purchase a government-approved health insurance policy — is subject to any genuine limitation. Thus, if Congress can force people to buy health insurance simply because they are likely to need medical care one day, can it also force people to buy environmentally friendly cars to promote green transportation, nutritious foods to promote a healthy lifestyle, and so on.

Solicitor General Don Verrilli gamely argued that health care is unique for a number of reasons, including the fact that our nation has committed itself to ensuring that everyone receives lifesaving medical treatment even when they are unable to pay for it themselves. But Verrilli seemed to be on much shakier ground trying to explain why a program ostensibly designed to address cost-shifting problems appears, on closer inspection, to be mostly about transferring wealth from healthy people to the old and infirm.

The conventional wisdom in the wake of Tuesday’s argument is that Justice Kennedy will likely cast the deciding vote. If so, I predict he will find the individual mandate unconstitutional for the following reasons.

First, there is no limiting principle; healthcare may well be “unique” in some sense, but, as Justice Kennedy seemed to recognize, so is every market and every industry. Second, Justice Kennedy takes seriously the importance of enumerated federal powers in protecting not just the prerogatives of states, but individual liberty was well. Finally, there is a huge difference between how the Affordable Care Act was implemented and, to use a favorite example of Justice Ginsburg’s, Social Security. Social Security and other New Deal programs that remain with us today enjoyed widespread popular support and were the product of a respectfully bipartisan, genuinely deliberative legislative process. The Affordable Care Act emphatically was not. To the contrary, the Affordable Care Act has become a public policy albatross that most of the public — including even some of those who initially supported it — wish the Supreme Court would take from around our necks. I’m betting the Court will oblige.