Nancy Pelosi predicts a 6-3 victory for ObamaCare
Look, if SCOTUS is as cynical and motivated by the threat of a screeching backlash from the progressives as Allah surmises — and it decides to rule favorably on ObamaCare out of some complex calculus of political variables (include “how people view the tenor and division within the court”) — the c0untry is all but gone, anyway: after all, there’s no use pretending to be governed by a Constitution that is so unstable that SCOTUS can plausibly claim that the document itself, written in the aftermath of a revolution fought to shed centralized despotic rule, allows for a federal government to order private citizens to engage in commerce as a way to justify a wealth redistribution scheme, with the young and healthy made to subsidize “universal” health care provisions demanded by the state.
And so a ruling in favor of ObamaCare, however narrow, is a ruling that would complete the deconstruction of the Constitution itself, and, to may way of thinking, invalidate all law: if we can’t be expected to anticipate how the law functions, we can’t pretend we’re living under a stable rule of law to begin with. It becomes a ruse, a facade displayed for political expedience but one that grants all authority to an alliance between the legislature and a court that is nothing more than a superlegislative body who, in order to keep up the appearance of judicial independence, will occasionally appeal to the intentions of the founders and framers.
So let’s hope Allah’s wrong — and that the suggestion that any originalist justice could be swayed by a flailing appeal, on the part of the law’s defenders, to the Necessary and Proper Clause, is just an exercise in intellectual caution. As Landmark Legal argues in its Amicus brief:
The federal government also invokes the Necessary and Proper Clause to defend what is indeed an unprecedented national police power. The Necessary and Proper Clause, however, does not create any additional congressional power, nor does it expand any enumerated power. See Joseph Story, A Familiar Exposition of the Constitution of the United States (Washington, D.C.: Regnery, 1986), Section 208. The individual mandate is not “a discrete and narrow exercise of authority over a small class of persons already subject to…federal power.” United States v. Comstock, 130 S.Ct. 1949, 1968 (2010) (Kennedy, J., concurring). Accordingly, the Necessary and Proper Clause does not justify the individual mandate as Congress never has had the authority to compel private parties to engage in private economic activity based solely on the fact of living.
Defense of this law fails when it appeals to Wickard — consumers aren’t producing wheat, or in this case, health care; therefore the government, even under an expansive reading of the Commerce Clause justified by Wickard, has no regulatory power over their inaction, unless SCOTUS is willing to set precedent that inaction is a form of action (in which case there is nothing that can’t be construed as commerce); it fails when it appeals to Necessary and Proper; it fails when it tries to claim itself a tax after being sold and passed as a penalty, with the President himself publicly denying that the penalty provision was merely a new tax.
If it is upheld, it may just be time to reconsider the kind of country we find ourselves in. Because American exceptionalism — or rather, the Constitutional framework that has long provided for it — will be gone, subsumed by yet another state that drifts into the tyranny of a centralized, all-powerful government charged with ruling over subjects, not governing with the consent of the governed.