Judge Napolitano: Justice Kennedy Is Key to Overturning Obamacare

Tuesday, 27 Mar 2012 07:10 AM

By Paul Scicchitano and Kathleen Walter

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Fox News judicial analyst Judge Andrew Napolitano tells Newsmax.TV that Supreme Court Justice Anthony Kennedy is likely to play a key role in overturning Obamacare.

“I think I can say with some confidence if Justice Kennedy is consistent with other things he has said about the Commerce Clause, he will vote with the four conservatives to invalidate the individual mandate because I think he recognizes the big picture,” said Napolitano in an exclusive interview Monday.

“The big picture in this entire case is whether the Constitution limits the behavior of the federal government to the plain meaning and historical context of the Constitution or whether clever lawyers and politicians can interpret language in the Constitution so as to justify whatever Congress wants to do.”

Commenting on the first of three planned days of arguments before the high court over the constitutionality of the Patient Protection and Affordable Care Act, Napolitano said that today’s proceedings were limited to the question of whether the challenge by more than half of all U.S. states was timely.

“The Constitution requires that the Supreme Court cannot give advisory opinions but it can only be asked to undue harm that is already been caused, or to prevent harm that is certainly on its way,” said Napolitano, author of, "It is Dangerous to be Right when the Government is Wrong."

Story continues below the video.

He said that the justices focused today on a law written shortly after the Civil War requiring taxpayers to have first paid a tax — or penalty in this case for not purchasing healthcare — before they could challenge it.

“Now I was not in the courtroom today, but from my colleagues who were, it is clear to me that the court believes the case is ripe because this issue of paying taxes is not the main challenge to the statute,” he observed. “It is a subsidiary challenge, but it is not the main challenge and so the fact that no one has yet paid this tax or penalty should not be an impediment to the court hearing the case.”

Napolitano is a former host of the libertarian show "Freedom Watch" on the Fox Business Network. The title of his book was drawn from a quotation attributed to 18th-century French civil libertarian Voltaire.

“I think that the court will find the individual mandate unconstitutional because I think it will find from the plain meaning of the Constitution,” he anticipated.

“We’re talking about what’s known as the Commerce Clause which authorizes the Congress to regulate interstate commerce. From the plain meaning, and the historical context of that clause, the court will rule that while the Congress can regulate interstate commerce voluntarily entered into, it cannot compel the involuntary participation in interstate commerce.”

He added that the court has never weighed in on the distinction between regulating what people voluntarily put into interstate commerce versus compelling people to engage in interstate commerce.

Assuming the court invalidates the individual mandate as Napolitano predicts, the justices will then rule on the issue of severability — whether the remaining parts of the 2,600-page law could still be implemented.

The case is by no means a slam dunk.

“I’m always concerned when any justices want to substitute their judgment for that of the Congress, and conversely I’m concerned when any justices refuse to enforce the plain meaning and historical context of the Constitution — and regrettably this is not just a liberal vs. conservative argument,” he explained, noting that the last significant Supreme Court ruling over the commerce clause involved growing medical marijuana by a person who had a prescription for the drug.

The man, who was growing the medical marijuana in his backyard, was prosecuted under the Commerce Clause even though he maintained that he was not selling marijuana and never planned to transport it out of the state.

“The government argued — ‘well if we let everybody make this argument then we’d have millions and millions of people growing marijuana in their backyard and the cumulative effect of that would have an effect in interstate commerce,’” said Napolitano, adding that some conservative justices accepted the government’s argument.

“So don’t be surprised if some conservative justices say Congress can regulate anything that moves and healthcare is one-sixth of the national economy,” he said.

While most Americans now oppose the healthcare law, which Obama signed in March of 2010, Napolitano insists that the justices should not let public opinion enter into their decision, which is expected sometime before the July Fourth holiday.

“We really want the justices to interpret the Constitution on the basis of its plain meaning and its historical context — not on the basis of what the polls tell the justices the public wants,” he said. “The Congress can listen to the polls and the Congress is a political branch. It was elected by people theoretically to do their will.”

If by chance the law is not overturned, Napolitano said that there is a very real possibility it could be repealed by a Republican president should President Barack Obama be defeated in November.

“If the president is somebody who is willing to repeal and the Republicans have a majority in the Congress, a simple five-line piece of legislation could repeal this if it got a majority of both houses and if the president signed it,” said Napolitano, who cautioned that Republicans cannot risk waiting too long to do so.

“If they wait too long and benefits begin to flow, they’re going to have a very, very difficult time taking benefits away from people who have planned their lives in anticipation of receiving them,” he said.

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