Conservatives Can’t Count on Court
By: Craig Chamberlain
Conservatives are in a rare mood: they’re optimistic. After listening to two days of Supreme Court hearings, and the skepticism from most of the justices on the individual mandate, many are convinced that victory is inevitable and the court will strike down the law as unconstitutional. I don’t want to be the one who has to throw cold water on our dreams, after all I would love it if the court slapped Obama in the face and struck down the entire bill. But I’m not pinning all of my hopes on it either.
It’s clear from listening to the arguments that justices Kagan, Sotomayor, Ginsburg, and Breyer will uphold the constitutionality of Obamacare and the individual mandate. Under their logic the commerce clause has no limitations. If we can be forced to buy health care then there is no reason why the congress can’t force us to buy Nike shoes. The progressive philosophy, to which they are beholden, tells them that the constitution can mean anything. Logically if the constitution can mean anything it really doesn’t mean anything at all. It becomes a Tabula Rasa for leftists able to justify whatever they want it to justify. So they can magically make the constitution anything they want it to be so they can pull America down the path to a constitutionless government.
It’s equally obvious that justices Alito, Scalia, Thomas, and most likely, Chief Justice Roberts, think that the individual mandate grossly exaggerates the powers of the commerce clause. They are after all beholden the the reactionary idea that a government actually has limits on its powers. The fundamental difference between a conservative and a progressive can be summed up in a single question: do you think that constitution is a good thing? These justices understand that if the federal government is given unlimited power, regardless of the constitutional justification, then the government will gladly take that power. If they take that power they will use that power. If they use that power they will abuse that power. If the commerce clause can force American to purchase health care how long will it be until they start dictating everything we buy?
Then there is justice Kennedy. The notorious swing vote on the court. Since Sandra Day O’Connor left the bench he has tended to side more and more with the conservative wing of the bench. Conservatives are hoping that trend sticks. From justice Kennedy’s remarks it seems that he believes that the individual mandate goes to far. But there is the chance that Justice Kennedy will convince himself that there is an exception when it comes to the health care market. He might create some new precedent proclaiming that the need for health care is so great the government has no choice but to force Americans to purchase this. This will open the Pandora’s box, no matter how narrow Kennedy might try to make the exception.
There are three possibilities. And Conservatives must be prepared for all three. First it’s possible that the court will strike down the entire law. Using Judge Vinson’s reasoning they will reason that the individual mandate is the linchpin of the law and without it there is no way, or justification, to keep the rest of the law running. This would be the best possible outcome, though the least likely. It would rid us of Obamacare, mandate, death panels, and all, and it would end the debate about the constitutionality of the government nationalizing an entire industry. The second possibility is that the court acts like King Solomon and splits the baby. It will go with Judge Hudson’s decision which declared the mandate unconstitutional but allow the rest of the bill to stand. This would make Obamacare an even bigger mess than it already is. No mandate means that few would willingly take part in the program and we would have more confusion than we already have. The last possibility is that the court will declare the entire law unconstitutional. This would be the most disastrous outcome. Even if the Republicans were able to repeal the law the idea of the government forcing people to purchase something would have constitutional sanction. Naturally conservatives would like the first possibility, liberals would love the third and the second possibility wouldn’t make anyone happy. Any decision will almost certainly be 5-4.
If Obamacare is struck down in its entirety Obamacare will be less of an issue in the election. While Republicans will be thrilled with the laws defeat it won’t do any good to promise to overturn the law. They’ll have to campaign exclusively on the economy, and will have to be specific. This could push some independents, with Obamacare no longer an issue, back to Obama. It’s impossible to say if this will be the case, but it’s a possibility. If the law is upheld then the election becomes more frantic and desperate. If the court gives the constitutional thumbs up to the idea of a mandate then it becomes imperative that the GOP win the White House. If they don’t within a decade we’ll have single pay universal health care insurance(remember proponents have said Obamacare is just step one to socialized medicine)
Conservatives must not put too much faith in the court, and must push forward with plans to repeal the entire law, and pass a law forbidding the government forcing people to purchase anything. It would be wonderful if the court struck down the entire law and ended this nightmare once and for all, but somehow I don’t see conservatives as being that lucky.