03.31.2012 0

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.

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