The Volokh Conspiracy says we’re Nearing the end of the search for the non-existent limiting principles vis-a-vis the mandate and the commerce clause.
With the Supreme Court probably voting on the constitutionality of Obamacare (a term the President proudly embraces) on Friday, the health control law’s academic friends are diligently attempting to do what the entire United States Department of Justice could not do after two years of litigation: articulate plausible limiting principles for the individual mandate. Over at Balkinization, Neil Siegel offers Five Limiting Principles.
The author (David Kopel) quickly dispatches Siegel’s arguments. Supporters of the law simply did not take the Constitutional objections seriously.
Over at TWS Conn Carroll thinks if this is the quality of the left’s arguments, the mandate is gone.
I think John Podhoretz nailed it on the head in today’s NYPost:
The panicked reception in the mainstream media of the three-day Supreme Court health-care marathon is a delightful reminder of the nearly impenetrable parochialism of American liberals.
They’re so convinced of their own correctness — and so determined to believe conservatives are either a) corrupt, b) stupid or c) deluded — that they find themselves repeatedly astonished to discover conservatives are in fact capable of a) advancing and defending their own powerful arguments, b) effectively countering weak liberal arguments and c) exposing the soft underbelly of liberal self-satisfaction as they do so.
That was the general consensus across the board. It held that the two lawyers arguing against ObamaCare — Paul Clement and Michael Carvin — were dazzlingly effective, while the administration’s solicitor general, Donald Verrilli, put in a mediocre performance.
True enough. But here’s the thing: There was nothing new in what Clement and Carvin said.
Their arguments were featured in briefs already submitted to the court and available for general inspection. And they’d already been given weight by the two judicial opinions against the constitutionality of ObamaCare issued by federal district court judges — one by Henry Hudson in Virginia in December 2010, the other by Roger Vinson in Florida in January 2011. The briefs exist. The decisions exist. You can Google them. They are strong, fluent, well-reasoned and legitimate. They take ObamaCare seriously, and they argue against it at the highest possible level.
Thus, the strength of the conservative arguments only came as a surprise to Toobin, Greenhouse and others because they evidently spent two years putting their fingers in their ears and singing, “La la la, I’m not listening” whenever the conservative argument was being advanced.
Jim Geraghty in the Morning Jolt adds:
The framing of the rest of the article grates on Jeff Goldstein at Protein Wisdom:
Well, “conservative” Justices. The liberal justices, some of whom would prefer it if they’d taken an oath to the Canadian or South African Constitutions, one imagines, believe there’s no need to wreck all the goodly social justice just because those well-intentioned, moral legislators who pushed it on us failed to include a severability clause and accidentally overstepped their authority with respect to the (hoary, flawed) Constitution. After all, what’s the High Court for if not to provide a sometimes clumsy legislative majority with the proper sculpting and legal fixes to their otherwise just and righteous laws?
I concur with Bryan Preston, in that I can’t quite believe that anyone is arguing, “well, un-doing a law would be a mess, so you might as well leave it be.” Hey, everybody, reading a suspect Miranda rights is going to be a hassle, so you know, just keep doing what you’re doing! Hey, everybody, desegregating the schools is just going to be a logistical nightmare, so just keep on with the status quo. Hey, look, Florida violated the Constitution by not giving this guy Gideon a lawyer, but implementing the changes from this is going to be a pain, so, hey, let’s just avert our eyes from the whole thing.