Or the real name of this post probably ought to be, What does Anthony Kennedy think of the individual mandate?
As many of you have read, conservative Virginia federal judge Henry Hudson (appointed by George W. Bush) just declared the healthcare law unconstitutional. He did not, however, move to block implementation of the law (remember, federal bureaucrats are writing the regulations right now). So he's kicking it upstairs, as we knew he would.
Jon Cohn notes hopefully that the score is still 2-1 for the pro-reform forces:
Two other federal district judges have already ruled that the Act passes constitutional muster, with a fourth decision, by a judge in Florida, still pending. Hudson refused a motion by the plaintiffs to block implementation of the law. That means it will be left to higher courts to sort out the conflicting rulings. Most legal experts expect that, eventually, the case will come before the U.S. Supreme Court.
As Cohn notes, those two judges who upheld the law were liberals, and the Florida judge whom we await is a conservative, so it'll likely wash out 2-2. Then on to the high court.
It would seem to me that the only question mark is the aforementioned Kennedy. Yes, Antonin Scalia once backed a pro-federal government interpretation of the commerce clause in a marijuana-growing case. But if you think Scalia, the most political judge of my lifetime, is going to hand Obama a win here, you are on several different kinds of acid.
It will all come down to Kennedy. But let's say for the sake of argument it's overturned. Is that bad or good for Obama?
The immediate reaction will be "In a devastating blow for Barack Obama..." And on the most superficial level it will be that. But after that first wave, is there an argument to be that it'd be good for him to be able to dislodge his leg from this unpopular political coffle? I'm being cynical and unprincipled here, but come on, folks. The law is unpopular. Most people want it repealed. Facts is facts. Maybe Obama would be better off politically without it, depending on the timing and how he handles it.
Now, being non-cynical and principled, I think it would be a tragedy in that this country would again probably do nothing about its healthcare system for another 20 years. This was a flawed bill in many ways, but at least it opened the door to the idea of making changes, which we badly need. That door would slam shut for another generation or more.
