How would she know? Her party’s all but given up on enumerated powers, at least in economic contexts. The first time she was asked to name which constitutional clause grants Congress the power to pass the mandate, her response was, “Are you serious? Are you serious?” Turns out we were serious. As a famous woman once said, they had to pass the bill to find out what was in it. What was in it was an unconstitutional power grab. Surprise.
I’m intrigued, actually, by how low key Pelosi’s been about the ObamaCare wars this week. Yesterday, while liberals were screeching about conservative judicial activism and Dick Blumenthal was warning reporters that “the court risks grave damage if it strikes down a statute of this magnitude and importance,” she went out of her way to say, “We respect the third branch of government and the role that they play under our Constitution.” Her thinking, I assume, is that she’s the public face of this boondoggle almost as much as Obama is, so if she comes out swinging at the Supremes it may annoy Anthony Kennedy just enough to fatally color his view of the statute. Judicial deliberations shouldn’t work that way, of course, but people are people. Tell them they’re hacks and morons and they’re naturally going to scrutinize your work product more closely.
Exit question via NRO’s Dan Foster: What’s the final Court vote on the mandate going to be? He thinks it’s 5-4 to strike it down with Kennedy writing for the majority. I’m going to throw you a curveball and predict that it’ll be 6-3 to uphold with Roberts writing for the majority. (The chief justice gets to decide who should write the opinion when he’s in the majority.) Kennedy’s open to the possibility that the mandate is constitutional if the government meets its “heavy burden” of showing that the law’s necessary and proper. He also appears open to the idea that health insurance is “unique” because one’s choice to remain uninsured affects the rates and availability of insurance for everyone else “in a way that is not true in other industries.” I think ultimately, rather than torpedo legislation this momentous on a 5-4 vote, he’ll err on the side of letting it stand if the opinion can be written narrowly enough to limit the decision to health insurance and nothing else. And once he makes that move, I think Roberts will join him for two reasons. One: I’m sure he’s sensitive to the grumbling about how divided and partisan the Court often seems, especially after he was confirmed promising to be a neutral “umpire.” If Kennedy’s going to defect and hand the liberals a 5-4 win, Roberts — who seemed less conclusively opposed to the statute during oral arguments than Scalia — may figure that he might as well cross the aisle too so that the Court seems less divided. Two: If he does cross the aisle, he can then write the majority opinion himself and make it as narrow as he and Kennedy like. The four liberals will sign onto anything to rubber-stamp this thing for their pal Barack. Joining them and Kennedy gives Roberts a measure of influence over the ruling that he wouldn’t have otherwise. Click the image to watch.