I predict the Supreme Court will strike down Obamacare. I predict that the individual mandate and the entire law will be declared unconstitutional and void.
However, I also expect that conservatives will ultimately find this victory unsatisfying. The demise of Obamacare will set a limiting principle on the previously unbound commerce clause, but that limit will be well beyond the boundaries sought by conservatives. I expect the Court will find the individual mandate relies on the regulation of personal inactivity (i.e. not obtaining health care) and thereby imply that all activity is subject to the authority of the federal government.
Conservatives will be caught on their heels. Having here-to-fore opposed the gross overreach of the commerce clause, conservatives will find themselves unprepared to defend lines of freedom within the realm of activity. Conservatives will have to find a new limiting factor. In the meantime, the Left will be able to advance new initiatives that continue the growth of government into new aspects of ordinary life.
That is my solid prediction for Obamacare. An admittedly more wishful – but not entirely fanciful – prediction is that the Court will strike down Obamacare with a 6 – 3 majority.
I think it is entirely plausible that Justice Sotomayor proves herself to be a “wise Latina” and establishes herself as less doctrinaire than the other three liberal Justices. It is early enough in her career that she can assert such independence.
Sotomayor will not be challenged and attacked by the usual suspects in the Democrat establishment and media. The Left is still unsure how to criticize one of its own, especially if that person comes from one of the Left’s protected minorities, and that silence will enhance the legitimacy of the ruling
Angry though they may be, in time, liberals and progressives will eventually applaud Sotomayor. At some future moment (during a Republican administration) the Left will remember that there are reasons to dislike an unfettered government. I envision a case in which federal authorities again abuse the commerce clause, this time in regulation of cyberspace.
Let’s suppose for the sake of fun that this future case involves a law that puts the burden of privacy squarely on the individual, leaving a person unprotected against the legitimized data aggregation of multinational technology companies. The inactivity of not buying and erecting firewalls, et. al., will be the factor that defeats this hypothetical case. At that moment civil libertarians will celebrate the Roberts Court and Justice Sotomayor.
Finally, if I may, I want to close with a complete wish – utterly devoid of any predictive substance. I wish that in the defeat of Obamacare the professional Left will shake off the complacency by which it so callously dismisses all conservative argumentation about the Constitution and enumerated powers. I wish desperately that the Left awakens from its somnambulistic self-assurance, and acknowledges the weight and seriousness of the Right. I predict this will not happen.