If you read Right Turn’s preview this morning of the Supreme Court hearing on health care, you got a remarkably close approximation of the argument today on the individual mandate. To put it bluntly, it was a rotten day for Obamacare, but more importantly, also for the left, which tends to assume that legislation it likes must be constitutional.
The justices spent little time on whether this is a tax issue. Instead, interestingly (but not unexpected by conservatives), the arguments over the Commerce Clause and Necessary and Proper Clause largely overlapped. In other words, the Necessary and Proper Clause is likely not going to save the government if it loses on asserting the Commerce Clause. (Justice Antonin Scalia seemed to agree with an argument advanced in Solicitor General Paul Clement’s brief that Congress’s power must be “necessary” and also “proper,” which would not be the case if it commandeered the states or individuals into taking action.)
What was crystal-clear in questions from Chief Justice John Roberts and Justices Scalia, Anthony Kennedy and Samuel Alito is that they are very concerned about the lack of limitations on Congress’s power if the feds can compel individuals to purchase something (i.e. get into commerce) and not just regulate it.
In perhaps the most telling moment, Kennedy said that allowing Congress to compel purchase of health care “changes the relationship between the individual and the government in a very fundamental way.” That, in a nutshell, is the challengers’ argument.
Right Turn will have more this afternoon on the hearing, with excerpts from the transcript of today’s oral argument.