This George Will column explains the grave constitutional importance of the Obmacare case that will be heard by the Supreme Court. In brief, if the court upholds Obamacare’s individual mandate that forces people to buy health insurance, we will have moved from a limited federal government to one that is totally unlimited.
Here are the first couple of paragraphs. The entire column is well worth reading.
Shortly before the Supreme Court agreed to rule on the constitutionality of Obamacare’s individual mandate, the U.S. Court of Appeals for the D.C. Circuit affirmed, 2-1, its constitutionality. Writing for the majority, Judge Laurence Silberman, a Reagan appointee, brusquely acknowledged that upholding the mandate means there is no limit to Congress’ powers under the Commerce Clause. (emphasis added)
Fortunately, Silberman’s stark assertion may strengthen the counterargument. Silberman forces the Supreme Court’s five conservatives to face the sobering implications of affirming the power asserted with the mandate.
Does Congress’ enumerated power to regulate interstate commerce empower it to compel individuals, as a condition of living in America, to engage in a commercial activity? If any activity, or inactivity, can be said to have economic consequences, can it be regulated – or required – by Congress? Can Congress forbid the inactivity of not purchasing a product (health insurance) from a private provider? Silberman says yes…..
Here is the analysis of the issue by AEI’s Thomas Miller who predicts that it will be a real nail biter.
The Commerce Clause constitutional issues are a close call. Four votes to uphold the individual mandate by any means necessary are in the bank—Justices Ginsberg, Breyer, Sotomayor, and Kagan.
Only one vote to invalidate the mandate on “originalist” constitutional grounds is predictable—Justice Thomas, although Justices Alito and Scalia remain more likely than not to reaffirm their inner (small f) federalists.
Justice Kennedy remains the key swing vote, but his recent line of opinions highlighting the constitutional balance of power between the national and state governments as a bulwark of individual liberty suggest further room for him to grow in a more conservative direction.
Chief Justice Roberts often approaches politically overcharged cases carefully, with an eye out for the Supreme Court’s institutional reputation, and his past votes on similar federalism issues are far from consistent. Given his key role in deciding who writes the lead opinion in any final majority ruling, one should expect him to be on the narrow side of either a 6-3 vote upholding the entire law or a 5-4 vote knocking out the mandate and perhaps some related regulatory provisions.