by oracleofreason

No one more than I wants to see the Patient Protection and Affordable Care Act (a.k.a. ObamaCare) struck down or repealed. The whole law itself is an immoral violation of individual rights and a vicious manner to ensure people obtain a service that should be bought and sold on the open market like any other product. The reason why health care costs have skyrocketed is clearly due to government intervention and, consequently, there are fewer choices and depreciated care which will only be made worse with the President’s new health care law.

The deliberations before the U.S. Supreme Court earlier this week, while impressive and heartening, in some ways left me thinking about the possibility of ObamaCare might actually be upheld. Like most other implemented statutes, the Affordable Care Act was enacted with the Commerce Clause cited as it’s justification. The rationale, as articulated by Solicitor General Verrilli, is that the primary method of payment of health care is insurance and Congress is taking action to ensure that people who do not have insurance obtain it since for the uninsured not to have it bears an unfair burden on the insured.

According to the Federalist Papers, the Commerce Clause is the means for Congress to regulate commerce among the several states only in so far as to preventing states from enacting trade restrictions and to restrain state power when it violates liberty. Under the Articles of Confederation, the federal government was so weak that at times states engaged in trade wars levying trade and immigration restrictions with little means to stop them that’s why there are prohibitions on such activities in the Constitution. The Commerce Clause is in place to address instances when states violate individual rights such as if states pass laws restricting the sale and possession of guns Congress can intervene to stop such actions. Thanks to the influence of the Progressive movement, in today’s legal culture the prevailing wisdom is that the Commerce Clause is the framework for justifying just about every act of Congress relating many activities to commercial activity.

The fact remains that in the scheme of the federal government the courts are to be the least politicized branch. Not only are they the one last institution that an individual can petition for redress if their rights have been violated but remain as one of the three branches to interpret the spirit and intent of the Constitution and the law. It would be a mistake to think that politics is the end all be all in terms of the law and legal decisions. The health care market in this country has never been the same since The New Deal. Prior to the event, health care was financed voluntarily where patients oft times would negotiate payments with their doctors and health insurance was usually available to the wealthy.

When the New Deal came about one facet of it was a tax credit enacted in the 1940’s for employers so they could give health insurance to their employees. Then in the 1960’s Medicare and Medicaid were enacted to pay for healthcare and the poor. In 1973 the Health Maintenance Organization Act was passed by Congress with the support of Senator Ted Kennedy at the urging of White House Domestic Affairs Director John Ehrlichman and Kaiser Permanente owner Edgar Kaiser in which the bill was signed into law by President Nixon.

The HMO Act not only mandated the fees, structure and coverage HMO’s would provide, but also doled out massive amounts of federal subsidies to insurance companies to provide, start or expand them. The subsidies were given in order to not only compensate insurance providers for the costs of complying with the HMO law but also to help pay for each HMO customer’s healthcare. This law along with the corporate income tax deduction for insurance of the 1940’s, the enactment of Medicare in the 1960’s and the HMO Act of the 1970’s individual choice in health insurance has slowly, but surely, been eliminated. Therefore, it is no surprise that the passage of the Patient Protection and Affordable Care Act (PPACA) occurred and that during oral arguments that Solicitor General Verrilli argued that since insurance is the main method of paying for health care that the mandate was necessary to bring the uninsured into the market.

As far as the Constitutionality for the Patient Protection and Affordable Care Act there are grounds for the Court to decide that ObamaCare is valid and, unfortunately, the more I think about it the more I am coming to the realization that PPACA being upheld could be a reality. The best indication of this happening comes not from liberal blogs and news media but from Washington University Law School Professor Orin S. Kerr who used to clerk for Justice Anthony Kennedy.

In his assessment of the case itself, Kerr asserts that not only will Kennedy vote to uphold the mandate due to his concurring opinion in U.S. vs. Lopez but so will Chief Justice Roberts. Roberts subjected the Solicitor General to just as much grilling as his other 4 colleagues yet, oddly enough, he could vote to uphold. The best indication of what he may do comes from a New York Times article published two weeks ago that points out Roberts was very disturbed by the outcry from the court’s Americans United decision that struck down campaign finance rules. The Times points out:

The case will require the chief justice to choose between two competing instincts.

On the one hand, he views himself as a steward of the court’s prestige and authority, and he has called for incremental decisions from large majorities rather than broad but sharply divided rulings….

Chief Justice Roberts has embraced an array of assertive judicial projects that have interpreted the Constitution in ways that have fundamentally reshaped American law. The court he has led since 2005 has cut back on campaign spending limits, gun control laws, procedural protections for criminal defendants and the government’s ability to take account of race in decisions about employment and education.

Roberts’ core philosophy maybe one who tends to shy away from narrow majorities when making decisions favoring consensus ultimately grounded in pragmatism.

Reason Magazine published an interesting article during August of last year that points out that during questioning by the Senate, Roberts is quoted as saying the Court should exercise judicial modesty and may uphold ObamaCare as settled law like he viewed Roe vs. Wade. Like Kerr and the Reason article point out, Roberts embraced a sweeping view of the Necessary and Proper Clause in the U.S. vs. Comstock case involving the incarceration of sexually dangerous persons can remain incarcerated even after their sentences conclude.

I heard Rush Limbaugh this afternoon in which he thrashed a Washington Post opinion piece which made the case as to how ObamaCare could be upheld with the help of not only Justices Roberts and Kennedy but also Scalia too. Not only does the WaPo commentary author come to similar conclusions as I about Kennedy and Roberts he also mentions a point Limbaugh failed to mention. As it turns out, there is a lower court case headed by former Justice Antonin Scalia clerk Judge Jeffrey Sutton cited by the Administration 21 times in which Sutton’s appellate court decision was one of two that upheld the law.

If the Supreme Court does uphold ObamaCare I think it will be by a 6 to 3 vote with Roberts and Kennedy joining Court liberals. Though there have been studies done outlining that in the majority of cases where the side who was posed the most questions was the party that lost, I am having my doubts it will be that way this time. If ObamaCare is struck down, so much the better. But if it does survive that will actually turn out to be a good thing. If ObamaCare is upheld there will be a backlash the magnitude of what happened after the Court rendered its Kelo vs. City of New London decision.

With Obamacare declared Constitutional those on the Right will have the momentum to not only elect a Republican President but also elect a Republican Congress the target of such an outcome, of course, is PPACA along with the President’s ruinous economic policies. Ultimately it is unrealistic for anyone to guess the outcome of court cases since courts of law are not necessarily politically driven. None the less, I am confident that whatever the outcome of the challenges to the Affordable Care Act, the side favoring freedom will win.

Since the Administration cites insurance as the primary means of payment as a reason to mandate insurance, there is a segment of the population (albeit small) that negotiates their health care bills. I dated a nurse who did just that and, if a repeal of PPACA does not happen either legislatively or judicially, I look forward to seeing the court challenges brought by those whose ability negotiate their medical bills is now outlawed because of ObamaCare.