Is The Obamacare Decision The New Kelo?

by Robert Thomas, InverseCondemnation.com

Those disappointed by the Supreme Court's decision in the ACA cases have searched for a silver lining in an otherwise devastating defeat: five justices would prohibit the Commerce power from reaching inaction, a Machiavellian CJ Roberts took the long view, that this is the Chief's Marbury v. Madison moment. Yeah, other than that, Mrs. Lincoln, how was the play?

Others have suggested, quite correctly, that the fate of Obamacare now rests in the hands of the people. Opponents have vowed to repeal it, citing the nearly universal popular revulsion with the Court's majority decision in Kelo v. City of New London as an example where one side lost the battle, but might have secured the upper hand in the long run.

Here's our thoughts on why that's unlikely, or at least why the comparisions to Kelo are inapt:

• In Kelo, the property owners were supported by both sides of the political spectrum: amici as diverse as the NAACP, Jane Jacobs, Richard Epstein and CATO, and the Goldwater Institute submitted briefs supporting the property owners. Even we filed a brief. When parties with as varied interests as those are on one side, you know you have hit a hot button issue that could have life beyond a court decision. By contrast, you can use Obamacare as a litmus test for where someone falls on the political spectrum: support it, and you are most likely on the left; oppose it, and you are on the right. That was true from the beginning, and unlike eminent domain abuse, this legislation and the lawsuits have always been pitched as a strictly partisan issue. It is unlikely that partisan support for the legislation will diminish, unlike in Kelo where support for the decision was lukewarm and poorly coordinated. No one wanted to be the champion of eminent domain abuse, whereas Obamacare might become the central issue in the presidential campaign.

• The eminent domain issues in Kelo could be reduced to a single photo: Susette Kelo and her "Little Pink House" she was trying to protect. If there is a similar visual that summarizes Obamacare we have not yet seen it. And we really doubt there will be an Obamacare movie.

• Holding that Congress can penalize you -- oops, impose a "tax" -- if you don't buy health insurance, while onerous and perhaps a greater overall intrusion on liberty, does not seem to strike the same visceral chord as taking someone's home and turning it over to someone else. Opponents of the Kelo principle had something grossly inequitable to latch onto, but other than "the feds can now force you to eat broccoli or pay a tax if you refuse" doesn't seem to fall into the same class. Supreme Court decisions, however poorly reasoned and overtly political, often give the winning side an air of legitimacy in the public's view, even as academics continue to debate its validity. We suspect that will hold true here.

• It seems much simpler to influence your state legislature or local council to repudiate eminent domain abuse, than for the national legislature to repeal a duly-adopted federal statute, even though it was adopted with virtually no input from the other side and even if the other side captures the two political branches in the next election.

Don't get us wrong. Like Kelo, the conclusion that the mandate is a "tax" seems like a case of the majority's infallibility stemming from the fact that there is no higher court, rather than its ultimate correctness. And, Obamacare and the Chief's sleight-of-hand could (and some insist will) have as equally poor an outcome as New London's prediction that economic good times would flow from taking Mrs. Kelo's home. It just doesn't seem to us that the issue will be able to spur the same universal gut revulsion that Kelo has.