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If Monday’s technical arguments about whether it was proper for the Supreme Court to hear a challenge to ObamaCare at this time marked the opening salvo in the showdown over the Obama administration’s signature legislation, yesterday’s argument session was the high-profile main event.
The issue argued before the justices concerned the most contentious element of the legislation: whether Congress exceeded its constitutional powers when it passed an individual mandate requiring individuals to purchase health insurance or pay a penalty. This is hardly a theoretical question. Given that the legislation depends on the mandate to provide it’s funding, it is no exaggeration to say that the fate of ObamaCare hinges on how the court decides that point.
The Obama administration’s strategy so far has been to insist that the legislation is not really forcing anyone to purchase anything. Solicitor General Donald Verrilli, the government’s lawyer, attempted to make that case yesterday by arguing that the legislation is simply regulating a market in which people are already participating, namely health care. It’s not compelling them to buy a particular product. In this account, since the Constitution’s Commerce Clause allows Congress to regulate economic activity, the individual mandate is constitutional.
One problem with this argument is that, in the case of the individual mandate, Congress is regulating not economic activity but rather what might be called “economic inactivity,” specifically the act of not purchasing health insurance. That contention was advanced by the National Federation of Independent Business, one of the opponents of the legislation and a plaintiff in this week’s hearings, which argued in its brief that “uninsured status neither interferes with commerce or its regulation nor constitutes economic activity. Instead, the uninsured’s defining characteristic is their non-participation in commerce.” If it is now within the government’s constitutional authority to require private citizens to participate in a certain economic activity, what is the defining limit of its power?
Justice Anthony Kennedy took up that very point in yesterday’s hearing, pointing out that the government’s reasoning for regulating health care could apply equally to, say, food. A similar argument has in fact been made by ObamaCare’s opponents, who point out that if the government’s rationale for the individual mandate is accepted there is nothing to stop it from passing a “broccoli mandate,” for instance, on the justification that it wants to regulate the food market. Pressing the point to its logical conclusion, Chief Justice Roberts added that if the court approved the individual mandate there would be little basis left for limiting Congress’s power. “All bets are off,” Roberts warned.
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