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June 27th, 2012 5:28 pm
ObamaCare Prediction: Individual Mandate Not Categorically Overturned
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With an overabundance of subtle and contradictory points of evidence rendering a cold, rational prediction nearly impossible, mine is entirely intuitive.  Unfortunately, I have been disappointed too many times already in my lifetime to expect a good result.  Twenty years ago, for example, I was a college student disgusted by the Court’s refusal to overturn Roe v. Wade (regardless of one’s view of abortion specifically, Roe is a judicial monstrosity) while it had the perfect opportunity and basis for doing so.  In subsequent years, I’ve endured such indefensible decisions as Kelo, with the seemingly more rare positive decision like Heller, the monumentally important Second Amendment case.

To me, anything less than an unequivocal, categorical rejection of ObamaCare’s individual mandate on the basis of the Constitution’s commerce clause is a loss.  To allow the federal government to coerce activity, in order to in turn rationalize regulating behavior not only eviscerates the concept of limited federal powers, renders the text of the Constitution meaningless.  From that point forward, it’s simply a matter of arguing degree, not kind.  We become a nation of men, not of laws.  Of judges arbitrarily deciding from that point forward which governmental intrusions get a pass and which don’t.  Honestly, I will be satisfied so long as the Court rules the individual mandate unconstitutional, even if the remainder of the law stands.  As economists say, what cannot continue will not continue.  And without the individual mandate, ObamaCare cannot and will not continue, at great (and justified) political cost to Obama himself and those who support the law.

At any rate, my bottom line is that I intuitively do not trust enough justices to make the correct decision.  I predict that a majority will concoct some way to allow the individual mandate to survive on the absurd “logic” that healthcare is a “special” category of commerce.  And even if they overturn the individual mandate, I suspect that they’ll do so on an “as applied” basis, meaning that the seal is broken.

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