Many folks are prematurely celebrating the death of ObamaCare after the pummeling of the administration’s lawyer—the Solicitor General—and others arguing on the law’s behalf. The questioning was aggressive, the Constitutional questions pointed, and the SG a nervous wreck.
But none of this means the Justices are going to strike this sucker down.
They should, of course. Requiring every American to purchase a good or service (in this case, health insurance) as a condition of living in the United States is unprecedented and clearly unconstitutional. There are various other Constitutional questions about the applicability of the Commerce Clause, the tax vs. penalty issue, and whether this law—in the words of Justice Anthony Kennedy—”fundamentally changes the relationship between the government and the individual.”
The SG, however, made the case that the health care market is unique in that everyone accesses it at some point in their lives. That led to potentially devastating exchanges with Justices Antonin Scalia and Samuel Alito. But Justice Kennedy—widely considered to be THE deciding vote—appeared somewhat softened by that argument. It could very well be that he was persuaded by the idea that, well, you know, everybody needs health care and the freeloaders are warping the system, etc etc.
Nobody knows what the Court is going to do. As much as I hate ObamaCare and believe it’s a destructive piece of leftwing social engineering and should go down in a blaze of unconstitutionality, I’m not convinced that the majority of Justices see it that way too.
So, from now until June, we must hope for the best and prepare for the worst.
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