- They Will Ask, “What Do You Have?”

I have taken a quick look at some of the opinion pieces out there, which almost pray that the Supreme Court will save at least the popular parts of Obamacare. I don’t pay much attention to the chattering class. It interferes with the peace and serenity I find in my own little world, where I can read actual transcripts and Supreme Court opinions. Then I can make my own guess how Justice Kennedy will decide whether the commerce clause can support the individual mandate. 

Tom has cautioned me to keep my writing “accessible.” So I have tried to write as plainly as I can about how severability may heave all of Obamacare into the dustbin of history. I have also talked about how the judge made substantial effect on commerce test upset the balance our framers struck between state and federal power. So now, being the kind of guy who confounds whoever tells him what to do, I will try to make the inaccessible accessible. The conventional wisdom makes Justice Kennedy the swing vote in almost any case. So the punditocracy impress each other by conjuring the middle ground of any old issue, and then saying which way he may swing. Instead, I have looked at what seems important to Justice Kennedy - federalism. 

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 (Yay!), 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.” 

He even quoted an opinion he penned, that states, "Federalism serves to assign political responsibility, not to obscure it." FTC v. Ticor Title Ins. Co., 504 U.S. 621, 636 (1992). There, the Court found title companies immune from federal price fixing regulations, because they followed state regulations: “Immunity is conferred out of respect for ongoing regulation by the State.” Justice Kennedy understands, I think, that a clear and understandable division between State and federal power makes our national experiment more profitable, while he also observed in Lopez that commerce clause cases have not been marked, “by a coherent or consistent course of interpretation.” History seems now to present an opportunity for Justice Kennedy to leave a lasting impression in an area of law he understands well, and finds attractive. 

I have stated many times that Obamacare stands apart from the rest of the commerce clause cases, because it requires Americans to enter into an unwanted contract. Gibbons v Ogden notes that long ago the States were at serious odds, nearly taking up arms, because New York confiscated the boats and other property of New Jersey mariners involved in navigation, and therefore “commerce.” So the Court had something meaty to sink its commerce power teeth into. With Obamacare, there is no ongoing confiscation of property used in commerce, or anything of the like. There are only healthy people, who don’t want to buy health insurance and who now are facing a fine because of it. There is an "absence" of commercial activity. The substantial effect on commerce came into existence, only after Obamacare was passed. 

So a collective shudder went through the punditocracy when Justice Kennedy asked Solicitor General Donald Verrilli, right out of the box, “Can you create commerce in order to regulate it?” His later colloquy continued it:

And 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 a very fundamental way.

He also asked, “Can you identify for us some limits on the Commerce Clause?” The answer is there are none, as long as Congress satisfies the substantial effect on commerce test. 

At the end of the day, all this boils down to whether the Department of Redundancy Department can make Johnny Strabler buy health insurance. I think Justice Kennedy will say, “No,” even if I can’t picture Anthony tooling down the road on a Triumph next to Meatball.