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 Salon.com, here.