Why the Court Will Strike Down Obamacare

Why the Court Will Strike Down Obamacare
Posted by James Ostrowski on March 28, 2012 06:49 PM

I have a cynical view of constitutional litigation. The Supreme Court acts in its own self-interest in two ways. First, by sanctioning continual government growth. That's what those who install the judges want. Second, by maintaining a sense of legitimacy that gives that sanction credibility with the public. To sum up 200 years of cases--basically government growth wins unless sanctioning it would threaten the regime itself. Thus, free speech is generally upheld as its denial is a clear signal for revolution. Procedural due process is generally upheld because its denial would threaten the regime as well by refuting its central premise--government as providing impartial resolution of disputes. The third area where limited government tends to win out involves cases where the language is so clear that ignoring it would be a clear message to the public that the Court is a joke. Hence, the decision upholding the right to bear arms (with major qualifications of course). The commerce clause is nearly that clear as well. Doing nothing is not commerce. The Court knows that it risks its reputation and hence its ability to sanction government growth generally if it upholds this law. That's why I believe the Court will strike the law down--its own self-interest is on the line.