Let’s face it, Elena Kagan will soon be a member of the Supreme Court. And it goes without saying that, being a progressive, she will be a justice with an elastic view of the Constitution. But is her view of the the Constitution so elastic that she would uphold Obamacare’s individual mandate? The answer is probably YES.
By legally penalizing inaction (failing to buy insurance in this case), Congress has taken an unprecedented step and is essentially asserting that there are no limits to its power. If Congress gets away with this, it means that the government can force you to do anything. It can, quite literally, fine you for not brushing your teeth.
There is, of course, no basis in the Constitution for such a liberal view of the federal government’s power. But the WSJ reports that, during her years in the Clinton administration, Kagan showed considerable sympathy with the view that Congress has, for all intents and purposes, unlimited imperial power:
One thing we’ve discovered from the prelude to her nomination concerns the limits of Congressional power—or, to be more accurate, her view that Congress has virtually no limits on its regulatory power under the Constitution’s Commerce Clause.
And, despite the Obama administration’s attempt at a legal bait & switch, the Constitution’s commerce clause is how the Dems justified the individual mandate in the actual bill that the President signed. And that is the basis of the most serious lawsuit facing Obamacare:
Ms. Kagan’s views matter in particular because one of the most important cases she’d confront on the Court is the legal challenge by some 20 states to ObamaCare. They are challenging that law on grounds that if Congress can compel all Americans to buy health insurance then there is nothing left of the Constitution’s government of limited and enumerated powers.
Thus, Kagan could be President Obama’s secret weapon for making sure Obamacare survives its inevitable encounter with the Supreme Court. Her history suggests that she will not lament the demise of Constitutional limitations on federal power. She doesn’t give a rat’s ass about ”enumerated powers.”
She should recuse herself from that case because she was almost certainly involved in developing the legal defense for Obamacare—but she won’t do it. So, here’s hoping that the conservative and moderate members of the Court keep their heads about them when the Obamacare case arrives on the docket.