As I’m sure you know, the line has been drawn in the sand, and in a few short months we will know who reigns supreme in this country, the people or the federal government. As Justice Kennedy said yesterday:
Here the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the federal government to the individual in the very fundamental way.
He is absolutely correct and cuts right to the heart of the matter. Who is sovereign? Who holds power? The federal government, or the people? Justice Alito also made what might be the best point I’ve heard yet, either for or against the mandate. He questioned whether or not the government could force us all to buy burial insurance and the governments solicitor for some reason claimed no they could not, which is extremely odd for two reasons:
- Everyone is more likely to die than they are to need medical care of any kind.
- Either the family or the estate of the deceased is responsible for burial costs (cremation, burial, launched into the sun, whatever). If neither can pay for it, or if no one claims the body, the government is on the hook. Lets face it, even if the government put unclaimed or indignant bodies in trash bags and buried them on the Capitol lawn, there is still a cost to the rest of us.
I’m not fond of the slippery slope argument, but I find it actually relevant in this case. There are multitudes of societal ills that could be addressed (with greater or lessor effectiveness) with mandates. If we can all be forced to buy health insurance, the government then has an interest in mandating the foods we eat, the leisure we partake in and the hobbies we have. Why should the public at large be forced to pay for rock climbing injuries? In order to prevent stomach cancer (and others) the government should mandate the maximum amount of alcohol one can drink, or ban it entirely.
When it comes down to it, we are not even talking about the right market. You may claim we are all going to need healthcare, but that isn’t what we have to buy, we have to buy health insurance, and that is not the same thing.
My prediction is the court will strike down the mandate 6-3. On the issue of severability, I predict that along with the mandate, parts of the law contingent on it will be stuck down, perhaps unanimously (the government actually is arguing for that). I don’t care enough about the medicare question to have a well formed opinion, but in general I’m not supportive of the federal government ordering the states to do anything.
Breyer: Go back to Justice Kagan. Don’t forget her question.
Kagan: I’ve forgotten my question.
Carvin: I was facing the same dilemma, Justice Kagan.
Ginsburg: Let me ask a question I asked Mr. Clement.
Kagan: See what it means to be the junior justice?