By Conn Carroll Senior Editorial Writer
On at least three separate occasions Obamacares Supreme Court Defender Solicitor General Don Verrilli was asked directly by three different justices (Kennedy Scalia & Alito) to explain why upholding Obamacares individual mandate would not create an unbounded Commerce Clause power. And he failed to provide an adequate answer every time.
When Kennedy asked him point blank
Well then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?" Verrilli tried to say the mandate was different because it did not force the purchase of a commodity just how that commodity should be financed.
Kennedy didnt buy it:
But why not? If Congress if Congress says that the interstate commerce is affected isnt according to your view that the end of the analysis."
If you want to know how the Court will decide the case come this summer pay special attention to how the Obama Justice Department tries to explain what the limits of Congressional power are. This issue has been Obamas Achilles heel throughout the process of getting to the Supreme Court. Obamacares defenders simply have not been able to answer the question: If Congress can force people to buy health insurance then what cant they force people to do?"
Or as the attorney for Obamacares challengers Paul Clement put it in his opening of his
brief: The individual mandate rests on a claim of federal power that is both unprecedented and
unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power does not exist."
And later Kennedy again signaled that he rejected the governments claim that the uniqueness of health care market provided a workable limit to Commerce Clause power. He told National Federation of Independent Businesses Attorney Mike Carvin:
The government tells us thats because the insurance market is unique. And in the next case itll say the next market is unique."
Exactly. All markets are unique. Simply stating that health care is different in no way limits government power.
We will not know till June how Kennedy will vote but yesterday marked the day that the individual mandates demise became more likely than not.
