Justice Breyer says Supreme Court will be take case on individual mandate

John Hagan writes:

Based on this story, which says that the Supreme Court is going to review the individual mandate in the health care bill, I’m cautiously optimistic that the individual mandate will be struck down. Also, I think that about 75 Democrats being booted out of the House of Representatives this fall may help the Court see this issue even more clearly in our favor.

LA replies:

Is there anything in this story which backs up your optimistic view, or is this just your general feeling?

John Hagan replies:

I was pleased to see Breyer mentioned this in public. My general feeling is that Obamacare will be struck down by at least a 5-4 vote. It’s inconceivable to me that the Roberts court will allow the Commerce Clause to be used in the manner that Obamacare stipulates.

This article shows me that Breyer and friends are well aware of the historic nature of all of these states challenging this federal mandate. I know that what seems obvious, and rational to me may not be the same thing the Court sees, but if the Court wants to take the Commerce Clause and allow its extension into forcing citizens to purchase a private product (health insurance), then citizen will have indeed entered into a new, and insidious relationship with government.

So, yes, I’m cautiously optimistic that Obamacare is a step too far for even this Court. One way or another the Court is going to rule on this issue.

- end of initial entry -

Phantom Blogger writes

According to this, there doesn’t seen to be much hope that the Supreme Court will knock down the Individual Mandate. Dylan Matthews says:

Given relevant precedents on federal regulatory power, especially 2005’s Gonzales v. Raich, where the court ruled that the federal government could regulate the state-level sale of medicinal marijuana, it seems unlikely that the court will take any action against the individual mandate. All the court’s liberals, along with Kennedy and Antonin Scalia, ruled in favor of the federal government in that case, and two of the dissenters, William Rehnquist and Sandra Day O’Connor, have since been replaced, and John Roberts and Samuel Alito seem to take a more moderate view of the federal government’s right to regulate interstate commerce. At the very least, Scalia and Kennedy are likely to side with the court’s four liberals should an individual mandate case come up, meaning the mandate should survive, easily.

Ian B. writes:

I’ve been thinking of another way Obamacare could be destroyed if direct wholesale repeal doesn’t work out. Quite simply, pass a law allowing any state that wishes to exempt itself from Obamacare completely, to do so. The citizens of that state wouldn’t have to deal with the mandate, and the medical practitioners and insurance companies in that state wouldn’t have to deal with any of the regulatory garbage or taxes. Democrats would have a hard time arguing against this, because they’d be in the position of directly arguing against letting people of different states choose what’s right for them.

Pretty much every state would drop Obamacare, and for those that wouldn’t, hey, their funeral. To encourage them to do so, laws could be passed simultaneously to “plug the loopholes”, “control unexpected costs”, and “keep Obamacare solvent”—or in other words, immediately impose the harsh rationing that will be needed to keep Obamacare running long-term. If that doesn’t send states running from it, nothing will.

Of course, other incentives could be added to the mix as well. Individual-based (rather than just employer-based) health care tax refunds could be instituted for those states that have dropped Obamacare, as well as allowing them to buy coverage across state lines between non-Obamacare states, and other popular free-market goodies to drive down the costs and/or improve quality. As each state exempted itself, Obamacare would die a de facto death.

Posted by Lawrence Auster at April 17, 2010 01:21 PM | Send