Wednesday, November 16, 2011

SCOTUS and Obamacare

During my Quick Hits post where I referenced that the SCOTUS has decided to take on the question of Obamacare during this year's court, I opined that  Justice Elena Kagan should recuse herself from ruling on the case.  This was not because of Justice Kagan's reported excitement over the passage of the Healthcare Reform bill (Obamacare), but because of her role as Solicitor General to the United States in developing the legal case and justification for the constitutionality of the bill.  As someone integral to the development of the case and rationale as to why the bill is constitutional, it would be improper, in my opinion, to then be in the position to judge the merits of the constitutionality of the bill.

The implication of this is a bias towards the legal case she was instrumental in developing to justify the constitutionality of the government's takeover of 18% of the national economy.

Ed Morrissey of Hot Air takes a different look at this topic in his compelling post, The Recusal Red Herrings. 

The only controlling authority for the Supreme Court on matters of recusal is … the Supreme Court. Congress cannot order a recusal, although they can certainly put some pressure on individual justices to recuse themselves. With a case like this, it would take wild horses to drag a justice away from an opportunity to put a mark on history in either direction.

In other words, no justice on this court will recuse themselves — and everyone knows it. The arguments taking place against Kagan and Thomas are interesting, but they only serve to shape the rhetorical battlefield for whatever decision comes down from the Supreme Court next summer. Both sides are preparing for some delegitimization ahead of the decision in order to fire up the base for the 2012 election, and for any efforts needed to repeal ObamaCare in case the court leaves it in place.

Justice Kagan should recuse herself from participating in this case.  My opinion is unchanged.  (Aaron Worthing at makes his case here...)  But as Ed makes the case, I also think that she will not recuse herself because of the stakes that are in play and the historical importance of this case.  Ed's case is very compelling in this regard.

This is something that goes beyond just a legal question towards the constitutionality of the individual mandate, it's severability from the remainder of the Healthcare Reform Act, and defining constitutional limitations on the Federal Government.  Ideology is also a major factor here.  (So are the economics, but that is far outside the purview of the SCOTUS.) 

From this ruling, what will be the direction and limitations of the Federal Government?  Will the concept of a limited Federal Government even remain after this ruling?  If the Federal Government can demand that all citizens purchase a product, even one that has ties to a 'collective good' like  health insurance, where are the limits to the Federal Government?  If upheld, does that mean the Federal Government, in the interests of national security and limiting our dependence on foreign oil, can demand that every household purchase an electric car or pay a carbon tax to the IRS with their tax returns?  That too would be for the 'collective good'.

Slippery slope arguments are often frowned upon, yet, in too many cases, the slippery slope that is envisioned often becomes real.  The original ruling, or crack in the dam, ultimately expands to threaten the existence of the dam.  Legal precedents can work in a similar manner.  Once the door has been opened, it's harder than hell to close.  That is one of the factors that make this case so important.

The power of the Federal Government has been growing over decades....and the past three years has seen an acceleration of this growth.  Not since LBJ's Great Society of the mid-1960's have we seen such an expansion of Federal power and influence.  If this law is upheld as constitutional, we will be moved even further towards statism and away from traditional American values.  We also move into far worse economic conditions reflective of this move deeper into statism, central government economic control, and entitlements.

Democrats, heavily invested in the Progressive ideology, look at this and the traditional American values around limited Government, and are worried that the SCOTUS will uphold the ruling of the 11th Circuit Court which not only defined the Individual Mandate was unconstitutional, but also that since it was not severable from the law, the entire law would be unconstitutional.

This would be the best answer for the country.  While we need to address the policy and economic challenges around the Healthcare Industry and the entitlement programs of Medicare / Medicaid, the Obamacare Bill did little to address the core problems we face.  Hopefully a reset will occur which will allow a new opportunity to address the challenges in an organized and non-ideological manner.

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