Why I'm Fairly Confident ObamaCare Will Be Held Unconstitutional

With ObamaCare potentially coming before the United States Supreme Court as early as this fall, people are already wondering and debating how the Justices will rule on the constitutionality of Obama's health care plan. 

I am fairly confident that the ObamaCare will be held unconstitutional by a 5-4 vote. We can be fairly certain that Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer will vote to uphold Obama's health care plan as constitutional. We also absolutely confident that Clarence Thomas, Antonin Scalia, Samuel Alito and John Roberts will strike down the law as unconstitutional. 

The lone vote will probably come down to Judge Anthony Kennedy who will most likely vote against ObamaCare. How certain am I this will happen? Judge Kennedy gave us a sneak peak of how he might rule on ObamaCare based on how he ruled in the Supreme Court case Arizona Christian School Tuition Organization v. Winn. 

If Kennedy remains consistent in his holding, he will strike down ObamaCare on basis that it violates the Commerce clause because the law makes an unproven assumption about people's choices in purchasing or not purchasing health insurance: 

A key provision of that 2010 law is the “individual mandate.” It requires most Americans to buy health insurance or face a hefty fine. Such an imposition on private health choices is based on an unproven assertion that everyone at some point will use a hospital emergency room. (The mandate also provides the major funding to achieve universal health care.)

But in writing for the court’s majority in Monday’s ruling, Kennedy warns against government action based on hypotheticals or conjecture. Courts especially should not endorse mere speculation and must instead deal with actual or imminent situations.

He argues against making inferences about “premises as to which there remains considerable doubt” or that are “not particular to certain persons.”

Such general language reflects Kennedy’s long-held caution about government overreach – which could include the health-care mandate. The justice also is often concerned about liberty of conscience, as he noted in this latest ruling.

His approach won the day in the 5-to-4 decision involving an Arizona program that allows individuals to keep $500 of income that they might owe the state if they give that money to groups that provide private-school scholarships for needy children.

His reasoning against ObamaCare can be explained this way:

Note the concepts here – speculative and conjectural – that could also apply to the premise of the health-care mandate, which is that everyone will someday use medical care at the expense of others.

Kennedy makes clear that any legal standing for taxpayers on church-state issues should be based on specific injury, not theoretical causation. The same reasoning could easily apply to the various federal court cases on the health-care mandate now working their way up to the Supreme Court.

I'm fairly confident that Kennedy will strike down ObamaCare based on his decision in Winn. Moreover,  Judge Henry Hudson and Judge Roger Vinson, have struck down ObamaCare based on the same reasoning that Kennedy did in Winn. Kennedy can simply carry Judge Hudson and Vinson Winn's argument in his decision on ObamaCare. 

Kennedy's decision in Winn can give Americans the confident it needs to know that ObamaCare will be held unconstitutional.