Thursday, March 05, 2015

Kennedy's love for federalism saves Obamacare?

Andrew Koppelman

Anthony Kennedy loves states’ rights more than he hates Obamacare.

Nearly thirty years after he joined the Court, we are still getting to know him.  He surprised us three years ago when he abandoned his supposed moderation by unsuccessfully attempting to strike down all of Obamacare, relying on embarrassingly bad reasoning to adopt a cramped interpretation of federal power.  This week’s oral argument in King v. Burwell, the case that threatens to gut Obamacare in 36 states, found him on the other side.  Obamacare seems likely to survive the latest episode in what Justice Elena Kagan called “this never-ending saga.”  But the reason is not the challenge’s devastating human consequences, nor the remarkably tortured reading of the statute upon which it relies.  It is the potential intrusion on states’ rights.  That is what Kennedy really cares about.

I explain in a column just posted on, here.

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