"It profits me but little that a vigilant authority always protects the tranquillity of my pleasures and constantly averts all dangers from my path, without my care or concern, if this same authority is the absolute master of my liberty and my life."

--Alexis de Tocqueville, Democracy in America

Tuesday, March 27, 2012

The Supreme Court and the Mandate

Apparently the Obama Administration's Solicitor General didn't fare so well today in defending the individual mandate at the heart of Obamacare:

A lot of people are expecting this decision to come down 5-4, with Anthony Kennedy providing the deciding vote between the conservative wing (Scalia, Thomas, Alito, Roberts) and the liberal wing (Sotomayor, Ginsberg, Kagan, Breyer).   I'm not so sure.   Recently there have been two 9-0 decisions against the Obama Administration in important cases.   In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Supreme Court unanimously acknowledged the existence of a "ministerial exception" that bans the government from interfering with religious organizations' right to choose their own ministers.  Then, in Sackett v. EPA, the Court held that landowners could sue the EPA over designations that their property constitutes "wetlands" under the Clean Water Act.   Both cases ultimately hinged on the Supreme Court wanting to reign in an Executive Branch that had overreached the limits of its power.  

The Obamacare case presents the exact same issue... is the power of the federal government limitless, or does the Constitution (and, hence, the Judiciary) place limits on the federal government's powers?   If the Commerce Clause lets the federal government tell a private citizen that he must buy a particular product -- health insurance -- what can't the Commerce Clause permit?

I predict the Obamacare mandate goes down by a 9-0 decision.   Justice Roberts will pull everyone together to be unanimous in a case that goes to the heart of what the Constitution means and, thus, goes to the heart of the Court's own powers.

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