Talk like that -- Kennedy is, after all, widely thought to be the swing vote who could save Obamacare -- left the law's supporters absolutely freaked out as they watched and read reports suggesting Obamacare is doomed.
"How did so many commentators predicting this would be a slam dunk for the Obama administration get it so wrong?" asked liberal Washington Post blogger Greg Sargent. Sargent theorized that the law's supporters simply underestimated the right-wing zealotry of Antonin Scalia. But there's an easier explanation: They simply never considered whether the vast, unprecedented and intrusive new law would raise any constitutional issues. It never entered their minds.
Two years ago, then-House Speaker Nancy Pelosi was taken aback when a young conservative reporter asked her, "Where, specifically, does the Constitution grant Congress the authority to enact an individual health insurance mandate?"
"Are you serious?" Pelosi responded. "Are you serious?"
Pelosi never answered the question, and neither did many liberals, even as a serious challenge to Obamacare made its way to the Supreme Court.
In the end, it might turn out that all of the liberal panic was unnecessary -- and all the conservative hope unfounded. Listening to the arguments and reading the transcript, it's not at all clear that the court will strike down the individual mandate, much less the whole of Obamacare. Yes, Kennedy sounded skeptical, but he's entirely capable of engaging in tortured logic to allow the law to stand. Chief Justice Roberts' position isn't clear, either. The case wasn't a slam dunk before, and it's not a slam dunk now.
But it will be over soon. The justices have already met in conference and taken a preliminary vote on the case. A final decision is due in June.
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