03.31.2012 17

The real judicial extreme

The Supreme CourtBy Bill Wilson — The die has been cast. By now, the Supreme Court has voted on all aspects of Florida v. The Department of Health and Human Services, the majority and dissenting opinions all assigned.

But nobody will know the result until on or about July 4, when the Court traditionally releases its most controversial decision of the term.

What they have done, however, is not in question. They will, in the long tradition of the nation’s fourth Chief Justice John Marshall, “say what the law is.” Ultimately, whatever the outcome is, the Court’s decision must be accepted.

Nonetheless, certain liberal commentators, like E.J. Dionne, Jr., are already crying foul, calling the Court in the pages of the Washington Post a “judicial dictatorship.

Seeing the writing on the wall — that there is a strong likelihood not just the individual mandate but that the entire health care law will be struck down — Dionne wrote, “[A] court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws.”

Dionne is not merely hyperventilating. The Court does appear likely to at least find that the individual mandate is indeed inseverable from the rest of the law, and thus none of it can stand. That is not radical, it is actually rational.

In the words of Justice Anthony Kennedy, responding to Deputy Solicitor General Edwin Kneedler’s pleas for restraint, “When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if … one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended.”

Kennedy was referring to something Justice Samuel Alito questioned later in arguments: imposing a $350 billion unintended liability on private insurance companies that were previously counting on the individual mandate to cover.  Alito asked the government, “what would happen to the insurance industry, which would now be … in the hole for $350 billion over 10 years?”

Kneedler disputed Alito, but Justice Antonin Scalia had an answer to his question, “That’s going to bankrupt the insurance companies, if not the States, unless this minimum coverage provision comes into effect.”

Chief Justice John Roberts openly questioned whether it was “within the proper exercise of this Court’s function to impose that kind of risk”.

As is his tradition, Justice Clarence Thomas remained silent, but based on his writings and other opinions, it is easy to presume that he will likely fall on the same side of the issue as the other justices who expressed skepticism about the constitutionality of maintaining the entire law should the individual mandate be struck down.

Leaving no doubt, the final nail in the coffin of Obamacare was set out by Kennedy — typically viewed as a moderate swing vote on the Court — when he said, “By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power … than striking the whole.”

Take that, Dionne.

Who’s the real extremist, those who would invent the power to compel individuals to purchase a product against their will, or those who would strike down such an unprecedented expansion of government’s power to regulate interstate commerce?

The real judicial extreme would be to just eliminate the individual mandate while leaving in place a mutant health care system that is destined to die.

Judicial extremism is to pull the plug on private sector health care — by virtue of a half-measure. That would be the true injustice.

On Obamacare, it’s all or nothing. That is the only rational decision.

Bill Wilson is the President of Americans for Limited Government. You can follow Bill on Twitter at @BillWilsonALG.

  • Hotnike

    Hey Dionne.  The people who we elected to make laws were no elected to make laws that are unconstitutional.  Get a grip, you Obama butt kisser.

  • Combat Seabee

    It should be all or nothing? I profess nothing as the guv has NO Right to tell me what to purchase , or withhold my tax returns as payment there0f!!!!!

  • del

    kagan should be out on her fat ass.  this entire bill is a crock of shite

  • Madlabcat

    Yeah, why the hell is she still there if she has a
    SERIOUS conflict of interest? Isn’t illegal for her to be there?

  • Patriot_70

    “Ultimately, whatever the outcome is, the Court’s decision must be accepted.”

    What is amazing is that the Judicial branch is only one of three equal branches of government.  Now, don’t msunderstand me, I think this health insurance mandate is wrongheaded and vicious – and will forever change the face of our government and it’s relation to the people. 

    But the court is only one of three branches of government, and it serves at the leisure of the citizenry of the United State, who are Sovereign.  EVERY Supreme Court decision can be overturned by holding a congress of the people on a state level and voting to amend the constitution to bypass all three houses of government.

    Frankly, if this is not overturned, I fear it will cause a civil war in the United States, because, frankly, we’ve been walked on enough.

  • AMEN

  • Ssilv48

    Really, the only way to beat this non citizen is for all Americans to call their congressmen and women to Vett this mr oboma that thinks all Americans are stupid and believe he is a citizen. There are a lot of state officals and congress and the jusical people need to be tried for treason. Until this is done, and people are held accountable for their actions, like not vetting a sitting person in the w/h. There is no way in hell that he is a citizen of the United States.

  • Hold_Politicians_Accountable

    All of our politicians need to be held accountable including candidates. We can start by holding Congress responsible for not standing up for american citizens that they are suppose to serve. Send this to everybody on your mailing list. Recommend it on Facebook, Tweet it. Ask everybody you can to do the same. We need all the signatures we can get.
    What we need is http://www.petition2congress.com/6195/congressional-reform-act-to-fix-congress/

  • Don’t worry, when they come back and throw out Obamacare, Obama won’t even have a pot to piss in as far as election goes.  Also from what I’m hearing around this country, Democrats are going to lose control of the Senate.  If we push hard enough we could get that 2/3 vote needed to pass what we want.  Then even if Obama would get back in (God hope he doesn’t) we’ll have control of both sides of congress.  We can then go after him for treason, and remove all that knew about him.

  • Freedom

    My question is this.What happened with the proportional representation, and I mean across the board, including the Supreme Court?

  • Panamajak

     I agree, I will never accept obamacare and I can see a civil war resulting if it is held.  I’m buy guns and ammunition just like everyone else

  • eagle6117

    Very interesting.  If Obamacare is struck down,  it will open the door to other government mandates.  (social security, medicare/medicade)  We shouldn’t be forced to pay into a social security program the government has pillaged and that my generation will never see.  They call it a tax but I believe Obamacare being eliminated gives us precedence to attack these as well.

  • geoffreybramhall

    I thought the law was written without the usual caveat that if any partof the law is found unconstitutional, the rest could stand.  It is scarythat the Supreme Court thinks it must decide this too.  The thing isthe mandate is what make the bill work if it was going to work.  Howcan you insure everyone and force the insurers to cover preexistingconditions if everyone is not paying into the system?  I’m against thislaw out of fear of what it is going to do to the health care industry andthe quality of health care most of us have gotten in the past. When thegovernment starts calling the shots and instituting mandates on the systemquality of service will go down and costs will spiral upward.  There was a veryconvincing article on line yesterday that listed how superior US health carewas before ObamaCare in comparison to the National systems in Europe andCanada.  The US was tops in all the major deadly diseases, wait times fortreatment and overal cost.  The story also pointed out how medical costs werequite stable until the government started getting involved with the passageof the Medicade and Medicare.  I paste the following relevant statement: “U.S. government spending on medical care was relatively constant, at about one percent of GDP, until 1965. That year marks a sharp inflection point, ending this period of relative stability and beginning our era of runaway spending. What happened that year? Medicare and Medicaid were enacted.”

  • Greg137

    Obamacare needs to die if this country is to survive.

  • Charlesp10

    Well said .I couldn’t have said it better.HI Five!!!!

  • Citizen1vote

    Stop listening to socialist propaganda. Read the part in the Constitution that says the government cannot demand or force the citizens to purchase anything. If obamacare is passed it will be forced unconstitutional legislation.

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