ObamaCare Thoughts
1. Let's remember the central issue, as summarized by Ilya Somin at Volokh:
If the Court ends up striking down the mandate (which I continue to believe is a 50-50 proposition), it will be because the federal government failed to come up with a good explanation of how the law can be upheld without giving Congress nearly unlimited power to impose other mandates. Although both sides in litigation have come up with numerous interesting points, I continue to think that this is the central issue in the case, and the biggest flaw in the federal government’s case.
2. If the mandate is overturned, brace yourselves for charges of "activism." Rubbish. The High Court just struck down the essential provisions of Arizona's immigration law -- have you heard any liberals screaming "activism?" Even lower court judges who upheld the mandate acknowledged its unprecedented nature. With no precedents directly on-point, how can the court be "activist?"
3. To those who say "but the mandate is a conservative idea" because some folks at Heritage supported it during Clinton, tell them, with all due respect, that the Heritage Foundation does not have a monopoly on conservatism. As long ago as 1993, there were conservatives pointing out that there is no constitutional basis to force people into the insurance market. See this 1993 WSJ piece from David Rivkind.
4. And finally, if the Court upholds the mandate (heaven forfend), keep your courage up. This is not the end of the game, as there are future court challenges (on other grounds) in the pipeline. There are, for example, suits to challenge the IPAB death panel as well the IRS's planned imposition of taxes not authorized in the statute -- see this bracing column by Jonathan Adler and Michael Cannon. And one of our own members K. Douglas Lee has been involved in a very robust challenge to the law -- and that's another lawsuit that could, I believe, continue even if the mandate is upheld.
Good luck to all of us!
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Comments:
Jun '10
Re: ObamaCare Thoughts
Adam Freedman:
4. And finally, if the Court upholds the mandate (heaven forfend), keep your courage up. This is not the end of the game, as there are future court challenges (on other grounds) in the pipeline.
I think I might have to disagree with you on this point, Adam. Even some of the Justices themselves note that if the individual mandate is upheld, the relationship between the citizen and state will be fundamentally altered (didn't Kennedy say that?). That kind of language is something one might expect to see in a Mark Steyn piece but not coming from a Supreme Court Justice... What's more shocking is that 4 Justices will probably be OK with the fundamental relationship transformation. Or, at least 4 Justices will find it Constitutional.
Strange times. Feels very uneasy.
May '10
Re: ObamaCare Thoughts
Sadly, I agree with Sam. Don't overestimate our patience with tyranny.
Even if Obamacare is overturned entirely, the next few years will present all Americans with great challenges as our economy suffers from the financial failures of European and local governments. We are already in a recession, and it's only going to get worse. And that's only the most obvious and inevitable trouble on the horizon.
If Obamacare stands, how patient do you think people will be under such circumstances?
I'm not saying tomorrow is all or nothing. But American politics isn't going to be like before, either way.
Re: ObamaCare Thoughts
I agree with Samwise. Don't blithley ignore the consequences that may occur if the madate is upheld.
Americans will be told we were never actually free. Our captors simply never used their power to issue "mandates" taking our personal property before this (Kelo served to soften us up).
Learning we aren't free will have a profound effect on us. The third incarnation of the Tea Party may work outside the law, as did the first.
Viva la revolucion.
Re: ObamaCare Thoughts
Your point #3 strikes me as especially welcome, Adam. Lord, if I had a nickel for every time over the last couple of years I've heard the claim that the individual mandate represented a conservative idea--including, let's face it, from the GOP presidential nominee--I could endow Ricochet generously enough to eliminate the $3.67 monthly fee for at least a century. Some conservatives supported the notion for a time--and nearly all of those (note in particular Heritage itself) have since changed their minds, recanting. But a lot of conservatives opposed the mandate from the very get-go, just as you say, and thanks, on this decision eve, for doing so.
Oct '10
Re: ObamaCare Thoughts
I awoke this morning with the thought that perhaps Kennedy's pointed questioning that gave hope to conservatives was a cover for his upholding the law. If he had a strong suspicion that he would rule in favor, what better way to defend yourself against charges of bias than strong, on-point attacks against it. He's now safe from criticism such as "Why didn't you give the lack of a limiting principle more consideration."
Yes, I'm paranoid. And not just because of the ACA (I think it could be combated legislatively and might even help Romney and Congressional races), but for the broader commerce clause issue noted by Samwise, Aaron and Tommy. Drudge is flashing '20 Minutes Until Judgement'.
May '11
Re: ObamaCare Thoughts
Tommy De Seno: I agree with Samwise. Don't blithley ignore the consequences that may occur if the madate is upheld.
Americans will be told we were never actually free. Our captors simply never used their power to issue "mandates" taking our personal property before this (Kelo served to soften us up).
Learning we aren't free will have a profound effect on us. The third incarnation of the Tea Party may work outside the law, as did the first.
Viva la revolucion. · 10 hours ago
And like what states did re: Kelo, we will just have to repeal the whole thing.
And by the way, I disagree with Dave Carter's excellent post yesterday in that we are not waiting for the judgement of 9 people...it's only 5. The other 4 never count no matter which way things go.