The Extreme Supreme Court?

The news out today that the Supreme Court will hear the Obamacare case this term is not a big surprise (they might have punted on “ripeness” grounds, as more than one lower court judge argued), but Ilya Shapiro of the Cato Institute points out why this is no ordinary case–it’s beyond even an extraordinarycase:

What was unexpected — and unprecedented in modern times — is that it set aside five-and-a-half hours for the argument.  Here are the issues the Court will decide:

  1. Whether Congress has the power to enact the individual mandate. – 2 hours
  2. Whether the challenge to the individual mandate is barred by the Anti-Injunction Act. – 1 hour
  3. Whether and to what extent the individual mandate, if unconstitutional, is severable from the rest of the Act. – 90 minutes
  4. Whether the new conditions on all federal Medicaid funding (expanding eligibility, greater coverage, etc.) constitute an unconstitutional coercion of the states. – 1 hour

In addition to the length of argument, which we can expect to be heard over multiple days in March or April, perhaps the biggest surprise is the Court’s decision to review that fourth issue.  There is no circuit split here — in large part because 26 states are already in this one suit — and no judge has yet voted to uphold what also be described as a claim that the federal government is “commandeering” the states to do its bidding. . .  As a practical matter, this could be a bigger deal than the individual mandate because, while Congress had never before tried an economic mandate, it certainly does attach plenty of strings to the grants it gives states — and the spending power is thought to be even broader than the power to regulate commerce.

It is impossible to overstate how remarkable this is.  Usually the Supreme Court allows only an hour for a whole case to be argued.  They didn’t even extend the time limit for the two Bush v. Gore cases in 2000. Prediction: If the Court strikes down Obamacare, and especially if its opinion goes beyond just the individual mandate, as these issues suggest is possible, look for the Left to start calling it “the Extreme Court.”

UPDATE:  From the comments below, a good analysis from Gary Gross.

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