As most readers are no doubt aware, the Supreme Court this week takes up six hours of argument in the Obamacare litigation. Constitutional claims that were originally dismissed as “frivolous” and “easy” are now getting three days of hearings — unprecedented in the modern era. The Court has thus signaled what the American people have known all along, that the government’s breathtaking assertion of power goes beyond anything attempted in the history of the Republic.
Rather than repeat my previous writings on the subject, here’s a sketch of each of the four issues the Court will examine, along with a link to my recent op‐ed on the subject (this month I’ve written on three of the four) and the relevant Cato amicus brief:
- Whether the challenge to the individual mandate is barred by the Anti‐Injunction Act. –- 90 minutes on Monday — op‐ed and brief.
- Whether Congress has the power to enact the individual mandate. –- 2 hours on Tuesday — op‐ed and brief.
- Whether and to what extent the mandate, if unconstitutional, is severable from the rest of the law. –- 90 minutes — op‐ed (with Richard Epstein and Mario Loyola) and brief.
- Whether the new conditions on all federal Medicaid funding (expanding eligibility, greater coverage, etc.) constitute an unconstitutional coercion of the states. – 1 hour — brief.
Are there any constitutional limits on what the federal government can do in the name of regulating interstate commerce? The government hasn’t offered any and we’ll see this week whether that’s good enough for the Supreme Court.
Here further is an analytical point‐counterpoint I did with University of California‐Irvine Law School dean Erwin Chemerinsky previewing the arguments, and here are a series of blogposts by Cato adjunct scholar Tim Sandefur doing the same. Finally, you can view Cato’s recent conference on the subject here (individual mandate panel) and here (Medicaid expansion panel).
Let’s hope that the Court says that we have a government of laws rather than men, allowing Congress then to get back to the hard work of crafting a true national health reform that both improves the system and stays within constitutional bounds.
May the odds be ever in liberty’s favor!