Wednesday, October 5, 2011

Catron: The Supreme Arbiter of Your Liberty

Now that the ObamaCare legal challenge is finally going to the US Supreme Court, what might we expect?

In today's AmSpec, David Catron has a nice detailed analysis of Justice Kennedy, the likely swing vote, at "The Supreme Arbiter of Your Liberty".

His conclusion:
Kennedy's record, then, is not merely incoherent. It also suggests that he believes the Constitution gives the federal government very broad powers via the Commerce Clause. If the Court upholds the individual mandate, it will increase federal power over your day-to-day life to a much greater degree than did even the Raich ruling. Whereas the latter regulates an activity, growing pot, Obamacare's mandate regulates something you are not doing. As constitutional law professor Randy Barnett explains it: "[T]he statute speciously tries to convert inactivity into the 'activity' of making a 'decision.' By this reasoning, your 'decision' not to take a job, not to sell your house, or not to buy a Chevrolet is an 'activity that is commercial and economic in nature' that can be mandated by Congress."

In other words, if the Supreme Court acquiesces in Obamacare's specious justification for the mandate, it means that there are no real limits to federal power. And this is where your personal liberty will be intimately affected by Justice Kennedy's view of the mandate. If Congress can order you to buy insurance, it can order you to do anything. As U.S. District Judge Roger Vinson put it last year, "If they decided everybody needs to eat broccoli because broccoli makes us healthy, they could mandate that everybody has to eat broccoli each week." Assuming the Court does grant the DOJ's petition, the only man standing between you and that kind of tyranny is a 75-year-old swinger from Sacramento, California. Anthony Kennedy could well be the ultimate arbiter of your personal liberty.
But read the whole thing.