Obamacare has run into a buzz saw at the Supreme Court. That isn’t really a surprise, and, as countless commentators have pointed out, you can’t necessarily predict a judge’s opinion from the tenor of his questions during oral argument. Still, Justice Kennedy, a moderate liberal, is likely the decisive vote, so the fact that he explicitly recognized that Obamacare is unprecedented is heartening to conservatives:
Kennedy: [H]ere the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in a very fundamental way.
In that last observation, Kennedy seems to be channeling Mark Steyn–a very bad sign for proponents of the law.
The question inevitably raised by the Obamacare appeal is, if the federal government can do this, what can’t it do? The Constitution established a limited federal government with enumerated powers. Over the years, however, the national government’s powers have expanded almost beyond recognition. The Commerce Clause has been used to justify endless federal intrusions into every nook and cranny of our lives. As a practical matter, the idea that the federal government is limited to the Constitution’s enumerated powers has been abandoned. The liberal position now is that there is no limit to the authority of the federal government, except as its powers are specifically restrained by the Bill of Rights.
Yet the text of the Constitution stands as a continuing rebuke to the thoughtless expansion of federal power. Whatever Nancy Pelosi and Harry Reid might believe, no Solicitor General can stand before the Court and deny that federal powers are limited. So when the justices asked, if the government can do this, what can’t it do, Solicitor General Donald Verrilli was obliged to argue that health care is unique, and therefore affirming Obamacare will not amount to a blank check for federal authority. So a special empowerment of the federal government with regard to health care ostensibly lies hidden somewhere in the Constitution.
Some have speculated that if the Court strikes down Obamacare, it will give Obama’s re-election campaign a boost. I am not sure whether that is correct or not–it strikes me that losing this case in the Supreme Court will contribute to the impression that the Obama administration has been a fiasco–but if so, it is a small price to pay. In a few cases in recent years, the Court has signaled that there are limits to the Commerce Clause. But Obamacare offers the Court an opportunity to do more: to issue a landmark opinion that would re-establish, in ringing terms, the proposition that ours is a government of limited, enumerated powers, and that would reassert the Court’s fidelity to the text of the Constitution. If that happens, it will be an important victory for the forces of freedom.
One final observation: some of the news coverage of the arguments before the Court has been good, but we have also seen howlers like this one in the Los Angeles Times:
[T]he administration has argued that Congress can use its authority under the commerce clause of the Constitution to impose the mandate as a means to regulate health insurance.
The Constitution says Congress has the power to “regulate commerce” and to impose taxes to promote the general welfare.
What the Constitution actually says (Article 1, Section 8, Clause 3) is:
The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
Ask yourself where in those words the Constitution authorizes Congress to control your family’s health care, and you get some idea of the magnitude of the task facing Solicitor General Verrilli.