ObamaCare and the Court

There are three basic arguments in support of Obamacare's constitutionality.

The first, and perhaps most honest, is political: The administration will ensure there are grave political consequences should Obamacare be overturned. To this end, influential surrogates argue that any legal opposition to Obamacare is partisan and illegitimate.

The second is both most common and, to my ears, incoherent. The argument is congress has a right to impose the individual mandate because "The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually." These costs, of course, are economic activity entirely created by government rules requiring hospitals treat people who cant pay. By way of analogy: Do liberals really believe that the government can pass a law requiring all restaurants feed anyone who comes in regardless of ability to pay, and then -- because restaurants would otherwise all go out of business -- mandate that everyone eat out once a week or pay a penalty?

The most compelling argument is, for lack of a better term, "realist": The conservative argument "liberty is at stake," is undermined by the recognition that congress could have accomplished the same policy through constitutionally permissible, if politically impossible, means. The weakness of that argument is, simply, it frames a vote against Obamacare as a vote for the rule of law. Further, if the liberal view is that liberty is best protected by voters rather than courts, then the courts ought be hostile towards laws that would be politically impossible pass properly.

One gets the sense that Roberts (and, for different reasons, Kennedy) is very sensitive to political pressure, and -- given the reasonable chance elections will wash this issue away -- would be very eager to punt. A punt -- hampering the economy with continued uncertainly -- would also be most damaging politically to Obama. On the other hand, should Kennedy wish to honor his lifelong federalism, he will likely be on much safer political ground in overturning, now, the medicaid expansion.