Anthony Kennedy, Election 2012, Federal Government, Health Care / Medicine, Paul Clement, Politics, SCOTUS, Supreme Court

Obamacare Goes to Court, Day Two: The Search for Anthony Kennedy’s Soul

Today was the big day: the individual mandate provision of the Affordable Care Act was argued in front of the U.S. Supreme Court. It’s always fun when nine unelected people get to decide whether Congress and the president get to do what the American people elected them to do.

Don’t get me wrong, I’ve been listening to CSPAN 3 take calls from “real” Americans about the constitutionality of health care, and let me tell you: Americans are incredibly stupid. On both sides. Christ on Phonics, I don’t even know if some of these people are able to read. Nine unelected arbiters looking at this is at least as legitimate as millions of freaking idiots having a clap-off to figure out how to administer health coverage for millions of people.

Did I say nine people will decide this issue? That’s not entirely accurate, is it? Aren’t we really talking about one guy?

They’re replaying the audio from today’s arguments on CSPAN 3. Too bad there’s no video… I want to see the gifts of frankincense and myrrh that Solicitor General Don Verrilli and Paul Clement brought for Justice Anthony Kennedy.

But what’s really interesting today is to see whether all these ideologically conservative judges will actually take a conservative judicial approach and show deference to the legislature.

Not that I’m holding my breath….

Again, I’m listening the audio as I go, and in the early going, Don Verrilli is trying to fight off Scalia, Roberts, and Alito like Andy Dufresne tried to fight off the sisters. And for this performance, the part of “Red” will be played by Ruth Bader Ginsburg.

But it does appear that Verrilli fought the good fight. Lyle Denniston of SCOTUSblog explains:

If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.

It really is that simple. All of this talk and analysis and campaigning and Tea Party organizing comes down to whether or not Anthony Kennedy can uphold this, yet still feel the federal government has limited powers. If he does, it is going to be upheld. If he doesn’t, the law is going down.

But should it be that simple? Let’s not forget that for roughly my entire life, conservatives have been bitching about “activist” justices who strike down laws and provisions that were duly passed by states or Congress. But what’s more activist than striking down a major piece of national legislation that was worked on for 18 months, passed by Congress, and signed by the President?

The five justices appointed by Republican presidents — Roberts, Scalia, Thomas, Alito, and Kennedy — were appointed because they allegedly opposed an “activist” court. Kennedy and Roberts don’t have any problem with government regulation. Alito is usually big on deference to the legislative branch. This decision should be 7-2; we already know that Thomas has made up his mind on this case, and Scalia’s ideological objections to the government doing anything that would confuse a reanimated Thomas Jefferson are well-documented.

But I don’t think it’s going to be 7 -2. Do you?

And so it comes down to Kennedy. And his concern is actually pretty simple: if the government can do this — if the government can force you to buy health care just because you will certainly be sick at some point — what can’t it do?

Verrilli and the government are saying that the government is just regulating a health care market that people are already in. “You’re young and healthy one day, but you don’t stay that way,” said Verrilli.

I don’t think there’s a legal issue here, I think there’s a policy issue. You know what would have been a lot more simple? Single-payer. Whether or not the government can force you to buy health care is an open issue. But it’s obvious that government could provide health care to its own citizens.

If the Court strikes this down, maybe we’ll get back to talking about how a civilized government would provide for its people.

Argument recap: It is Kennedy’s call [SCOTUSBlog]

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