Thursday, June 28, 2012
- Justice Kennedy's Federalism
Nancy Pelosi thinks the Court will come down 6-3 in favor of keeping the individual mandate in Obamacare. This worried me, after I had looked at a claim running around the blogosphere that the Obamacare opinion had been leaked to the administration.
Instead of getting caught up in the chatter, I just wanted to quote what I wrote on June 12, 2012:
At the root of our federal system is the Westphalian notion that the individual States possess inviolable autonomy to regulate economically, while the federal government ensures the peace by facilitating free commercial intercourse. After all, our founders knew well that Europe’s then most destructive conflict, the twin Thirty Years War and Eighty Years War, ended in 1648 when the combatants recognized exclusive sovereignty of each party over its own lands. They also knew Westphalian peace gave rise to a patchwork of German principalities that taxed and inspected commerce until they all impoverished their subjects. As a result, the founders created an innovative American federal/state balance, which lit an engine of peace, stability and economic growth.
I think Justice Kennedy understands the importance of federalism, because in his concurring opinion in U.S. v. Lopez, he summarized the history of the Court’s commerce clause jurisprudence. He then wrote that, “only concerning [federalism] does there seem to be much uncertainty respecting the existence, and the content, of standards that allow the judiciary to play a significant role in maintaining the design contemplated by the Framers.” He mused that, “There is irony in this, because … federalism was the unique contribution of the Framers to political science and political theory.”
In Bond v. U.S, a unanimous decision, Justice Kennedy likewise wrote:
Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. "State sovereignty is not just an end in itself: 'Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.' "
One who so eloquently describes that, "federalism protects the liberty of the individual from arbitrary power," will not turn on a dime to embrace a first ever federal compulsion to enter an unwanted contract.
I have described that without federalism and with an all-encompassing power in Washington to regulate any activity that has an "impact" or "affect" on commerce, the Department of Redundancy Department will have the power to rule just about anything politicians can immagine. Justice Kennedy will vote to strike the mandate because he believes in federalism. It will be a 5 to 4 decision. If I really have it nailed, Justice Kennedy will write a concurring opinion that features federalism.
While I'm at it, and just for fun, I thought I would repost this afternoon's news headlines (if the Court delivers its opinion today) which I wrote more than three weeks ago:
In a surprise move, the conservative members of the Supreme Court banded together to strike all of Obamacare, rather than keeping the parts that pass constitutional muster. The Administration has expressed disappointment that the Court divided along partisan lines to kill a popular a law passed by both houses of Congress.