Tim Wildmon
AFA president
June 2012 – Sometime in June the Supreme Court of the United States will hand down a decision which will decide the fate of the Patient Protection and Affordable Care Act or “Obamacare” as it is commonly called. My guess is it will most likely be struck down as unconstitutional in a 5-4 or 6-3 decision. Most observers who listened to oral argument earlier this spring by the solicitor general (federal government’s top lawyer) before the Supreme Court agreed that it did not go well for the Obama administration.
The main question before the court was this: Does the federal government have the power to compel individual citizens to purchase a product or service?
The Obamacare law says that everyone must have medical insurance or face penalties from the government. A recent Gallup poll found an astounding 72% of Americans believe the fundamental glue to the president’s health care reform – the individual mandate – is unconstitutional.
You may remember, Obamacare was passed straight down party lines and the Democrats used a very unusual procedure to even get it to a vote.
Based on the questioning from the conservative justices, all four of them will vote Obamacare unconstitutional.
Moderate Anthony Kennedy, considered the swing vote, told lawyers in the room that “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.”
Even if the four liberals vote to uphold the law, Obamacare would be struck down 5-4 if Kennedy votes against it.
However, this case is interesting to me because the four liberals on the Supreme Court, including two appointees of President Barack Obama, all would proudly call themselves “civil libertarians.” That is to say, they proudly subscribe to an ACLU view of the law.
In fact, Ruth Bader Ginsberg was at one time the general counsel for the ACLU. And the ACLU’s basic stated purpose for existing over the last few decades has been to protect the rights of individuals against the power of the government.
If the liberal justices side with the Obama administration in this case, I am not sure how they would reconcile the conflict of this law with their liberal judicial philosophy. Not that they really have to. Federal judges are appointed for life and answer to no one. They are as close to gods as you can get in America.
But I believe the high profile nature of this case will require that these justices explain themselves if they go against their ACLU leanings in favor of a president they agree with politically.
Most of my friends who have followed the court think I’m delusional on this one, but I would not be surprised if at least one of the liberal justices stayed true to civil libertarian views and voted against Obamacare, and we end up with a 6-3 decision. Especially if the court cannot find a way to take the individual mandate out without rejecting the entire legislation.
I believe we can find ways to reform health care in America without violating the Constitution. We need to go back to the drawing board on this one and come up with some ideas that a majority of Americans can support, which was not, and is not, the case with Obamacare.
This issue also shows that it is extremely important who is president because he is the one who nominates federal judges including the Supreme Court. And today’s judges too often rule not by upholding the Constitution, but by legislating from the bench. 
