Bad Day for the Mandate
The Obamacare mandate had a rough day yesterday in the Supreme Court. Here’s how Don Surber of the Charleston (W. Va.) Daily Mail summarizes it:
The Obama administration’s defense of Obamacare before the Supreme Court on Tuesday was reviewed as stumbling and bumbling by news reporters, foreshadowing the Big Government clumsiness and ineptitude a universal health care system would offer the public. Justice Anthony Kennedy ripped through the argument that because Congress has the constitutional power to regulate interstate commerce, it has the power to regulate anything. Solicitor General Donald Verrilli was overmatched and ill-prepared, displaying once again why socialism fails: It leads to the appointment of unemployable nephews and political hangers on to positions for which they are ill-suited.
JUSTICE KENNEDY: Can you create commerce in order to regulate it?
GENERAL VERRILLI: That’s not what’s going on here, Justice Kennedy, and we are not seeking to defend the law on that basis. In this case, the — what is being regulated is the method of financing health, the purchase of health care. That itself is economic activity with substantial effects on interstate commerce. And–
JUSTICE SCALIA: Any self purchasing? Anything I — you know if I’m in any market at all, my failure to purchase something in that market subjects me to regulation.
GENERAL VERRILLI: No. That’s not our position at all, Justice Scalia. In the health care market, the health care market is characterized by the fact that aside from the few groups that Congress chose to exempt from the minimum coverage requirement — those who for religious reasons don’t participate, those who are incarcerated, Indian tribes — virtually everybody else is either in that market or will be in that market, and the distinguishing feature of that is that they cannot, people cannot generally control when they enter that market or what they need when they enter that market.
CHIEF JUSTICE ROBERTS: Well, the same, it seems to me, would be true say for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don’t know when you’re going to need it; you’re not sure that you will. But the same is true for health care. You don’t know if you’re going to need a heart transplant or if you ever will. So there is a market there. To — in some extent, we all participate in it. So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?
As Mr. Surber rather drily observes:
It was brutal. It was a pack of pupils savaging the substitute teacher. The flimsiness of the argument that you will eventually need health care was toilet tissue thin and Justice Sam Alito figuratively wiped himself with it and tossed it back at counsel.
JUSTICE ALITO: Do you think there is a, a market for burial services?
GENERAL VERRILLI: For burial services?
JUSTICE ALITO: Yes.
GENERAL VERRILLI: Yes, Justice Alito, I think there is.
JUSTICE ALITO: All right, suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, “You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money for it, you’re going to shift the cost to somebody else.” Isn’t that a very artificial way of talking about what somebody is doing?
GENERAL VERRILLI: No, that -
JUSTICE ALITO: And if that’s true, why isn’t it equally artificial to say that somebody who is doing absolutely nothing about health care is financing health care services?
GENERAL VERRILLI: It’s, I think it’s completely different.
And it is not completely different. It is completely the same. This case is not just about Obamacare. It is about an entire review of the interstate commerce clause. The Supreme Court has allowed that clause to be used as an excuse to expand the federal government to the point where it no accounts for one-quarter of the economy. The best and the brightest now ply their trade on K Street, not Main Street and the nation suffers for it. Lobbying has replaced innovation. You can make more money off a government bailout than you can make by building cars.
The entire column is well worth reading—Mr. Surber goes on to make the point that perhaps the Justices began to realize yesterday that their lenient Commerce Clause jurisprudence of the last eighty years has allowed Congress to take things too far. After all, the only limit to the progressives/socialists who want the government to do everything and pay for everything is the one identified by Baroness Thatcher: “Eventually they run out of other people’s money.”
Glenn Reynolds has a great round-up of the reaction and commentary to the arguments at this link. But I would be remiss if I did not point out to SF readers that some people see, in Solicitor General Verrelli’s abysmal defense of the mandate, a deeper strategy: read this post, and then this.
If those posters are correct, then the strategy appears to be well under way, given this report of this morning’s arguments on the severability issue.
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