Tuesday, March 27, 2012

Oral Argument: Obamacare Faces The US Supreme Court

A big day, not just for conservatives and Tea Parties, but also for constitutional originalists, as Obamacare came under withering attack at oral argument in the US Supreme Court:
Verrelli was clearly nervous as he started off his one hour of argument, stumbling repeatedly in his opening statement. His arguments were, at times, confusing and sometimes contradictory, emphasizing the weakness of the government’s position.  Every now and then, Ginsburg and Breyer would step in to try to help him when he was having trouble answering difficult questions from Justices Scalia, Alito, Roberts, and Kennedy. 
Kennedy challenged Verrelli almost immediately, asking him whether Congress can “create commerce in order to regulate it.”  Verrelli’s claim that Congress can regulate because the health care market is unique since everyone will have to participate in it at some point started to fall apart when justices such as Alito began asking him about other markets.  For example, Alito pointed out that everyone dies and therefore will participate in the burial expense market.  Under the government’s rationale, Congress could compel all Americans to buy burial insurance so that such costs are not passed on to family or the government.  Justice Kennedy snidely remarked that the government was saying the insurance market was unique “[a]nd in the next case, it’ll say the next market is unique.” 
Justice Kennedy made it clear more than once that the government has a “heavy burden” to show that what it is doing is constitutional since it is compelling people to enter into commerce. Kennedy also stated that the government’s theory would “fundamentally change the relationship between the individual and the state.”  This is a key point because in past cases where he has sometimes upset conservatives (such as Lawrence v. Texas, which struck down a state sodomy law), Kennedy has sided with protecting the individual against the power of the state.  This case falls squarely into that category.
What tripped the Solicitor General up was the old Tom Coburn question "what keeps you from mandating broccoli eating, if you can mandate insurance purchases?" As this has been the central conceptual attack on Obamacare since at least the summer of 2009, you'd think the SG would have a bulletproof response in his hip pocket. Unfortunately, he had one problem: the question is literally unanswerable because there is no limiting principle if you accept the proposition that the individual mandate is constitutional. Liberals can hem and haw, and dance around, and post "4 Great Things About Health Care Reform" on Facebook, but they can't escape the fact that what they propose to do is dangerously unconstitutional, not to mention unprecedented. 

Conservatives and Republicans may be stoopid, but we sure ask tough questions. 

For all the theoretical talk in the air about the Commerce Clause, the boring truth is that it is an admirably practical constitutional provision: Congress can regulate commerce between the states. Who else is gonna do it? (certainly the states by themselves cannot. that was one of the biggest drawbacks of the Articles of Confederation). But, 75+ years of "expansive" liberal readings of the Commerce Clause have led us to this moment where the federal government has sought to have the sole power and discretion to deliver health care to Americans. This was a bridge too far by the left. We can only hope that today's optimism on the right is justified. 

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