Justice Kennedy on the Brink

Our former colleague Paul Mirengoff provides his impressions of today’s oral argument in Department of Health and Human Services v. Florida:

When all was said and done, it seemed to me that we are where most people outside of the wishful thinking liberal commentariat thought we’d be – with the fate of Obamacare riding on a conflicted Justice Kennedy. To be sure, Chief Justice Roberts did not fully tip his hand. Indeed, he seemed to find force in the government’s argument that everyone already is in the affected market here, and that this distinguishes the individual mandate from, say, legislation that would force everyone to purchase cars.

But while the Chief Justice thought the challengers’ lawyers were at times overstating their case, he seemed more fundamentally troubled by the government’s argument. So if there is a fifth vote to uphold the mandate, it will probably be Justice Kennedy’s.

What should we expect from Justice Kennedy? Because the mandate expands the federal government’s power at the expense of the individual, this case falls more in Kennedy’s conservative wheelhouse than in his liberal one. But will he really pull the trigger and finish off the Obamacare mandate? To me, that seems slightly less than an even money proposition.

I want to conclude by praising Paul Clement’s argument on behalf of Florida and the other states. I’ve long been a Clement fan, but I thought he surpassed himself today, delivering a near perfect argument.

I may be biased, though, so I was happy to read that top-notch Supreme Court advocate Tom Goldstein of Scotusblog, who does not share my biases, called Clement’s argument the best he’d ever heard.


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