Could the Supreme Court Take a Mulligan?

Richard Epstein points to Justice Anthony Kennedy’s killer question in the oral arguments over the Obamacare mandate last week: “Can you create commerce in order to regulate it?”  Where have we heard something like that before?  That’s right—in Citizens United.

Prior to the prospect raised last week of the Supreme Court striking down Obamacare, Citizens United is the modern case that gets the most ire from the Left.  “This is the worst Supreme Court decision since the Dred Scott case,” said the egregious Congressman Alan Grayson in a typically well-reasoned response from the Left.  One wonders what hyperbole will be left if Obamacare is struck down.

What people forget is that Citizens United was reargued, because the Justice Department also could not give a coherent answer to a killer question, this time from Justice Alito, as to whether the campaign finance laws that prohibited the distribution of Hillary, the Movie wouldn’t also allow the Federal Election Commission to regulate the distribution of books near election day.  Then-solicitor general Donald Stewart answered Yes, notwithstanding that pesky little First Amendment thingie.

Alarmed, the Court ordered the case reargued, specifically expanding its scope to ask whether certain previous cases that provided the basis for Stewart’s answer had been erroneously decided and should be overruled.  During the second oral argument, a new solicitor general—Elena Kagan—was asked the same killer question, and answered: “No [we can’t regulate books]; the government’s position has changed.”

Stop and dwell on that one phrase for a moment: “The government’s position has changed.”  That says about all you need to know about the rule of law in the liberal wonderland of today’s administrative state.

This phrase probably mattered more to the outcome that Kagan’s convoluted and unpersuasive argument that followed that attempted a fine distinction between films like Hillary, the Movie and books.  The Court was unpersuaded, just as it appears to have been unpersuaded last week that the individual mandate could be squared with the Commerce Clause any better than FEC regulation of books and movies could be squared with the First Amendment.  And as noted here before, the Justice who wrote the ringing opinion in Citizens United was Kennedy.

I think the chances for re-arguing Obamacare in the same way are practically nil.  The experience of Citizens United is precisely why the Court decided to have the extraordinary three days of argument over the case—to make sure they covered everything thoroughly, and didn’t end up in their conference to vote on the case with the feeling that some really big issues weren’t covered in the briefs and oral argument.  But stranger things have happened.  It is generally forgotten today that Brown v. Board of Education was reargued too.

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