Have to confess, I’m starting (late, maybe) to get kind of wrapped up in this SCOTUS/Obamacare story. The terminology is interesting — the justices are talking about “inactivity” and “severability” and are searching for a “limiting principle.” The word of the day yesterday may have been “plenary,” as when Mike Carvin said [transcript here], in his opening, “If you accept [the government’s] argument, you have to fundamentally alter the text of the Constitution and give Congress plenary power.”
Plenary, defined by Merriam-Webster: “Complete in every respect: ABSOLUTE. UNQUALIFIED...Middle English, from Late Latin plenarius, from Latin plenus.”
Good word. In my cubicle I exercise plenary power. And there is no limiting principle circumscribing or in any way fettering the exercise of the aforementioned power. Only I can rearrange the paperclips in my top drawer. Only I can take a Post-it note off my monitor and drop it in the wastebasket the way LeBron takes an alley-oop from D-Wade and thunder-dunks it (did you know they call the two of them on the fast-break the “Flying Death Machine”?).
“Such a Romney-appointed Solicitor General would have pointed to the array of things the federal government can unquestionably command people to do—including conscript them into combat and tax 98% of their earnings—that are vastly more onerous (and vastly less beneficial to the individual) than buy health insurance.”
Much commentary today on the alleged flame-out yesterday by the Solicitor General. I have heard mixed opinions on this. Maybe Donald B. Verrilli Jr. was told by the administration to be as vague as possible about such things as the aforementioned limiting principle. But if you read the transcript it’s hard to know what the heck he was trying to say. Nerves?
But it shouldn’t matter. This won’t, and shouldn’t, pivot on one lawyer’s performance. The Supremes know how important this is and apparently they’re already thinking about what a mess it’ll make if they do overturn the Affordable Care Act. From Lyle Denniston:
“Congress’s capacity to react in a sensible way also came into some question, particularly from Justice Scalia and, in a way, from Justice Anthony M. Kennedy, both of whom seemed to harbor doubts that the lawmakers would be up to the task of working out a new health care law if this one failed, either totally or partially. Scalia noted the problems in the filibuster-prone Senate. Kennedy wondered whether expecting Congress to perform was a reference to ‘the real Congress or the hypothetical Congress’.”
This law won’t live or die purely on constitutional principle. Politics is always involved. And the Supremes, too, live in the real world.