If you’ve been following the news at all, you know that today marks the beginning of Supreme Court arguments over ObamaCare. In my write-up over at United Liberty, I explain what issues the nation’s High Court will look at over the next three days and what exactly is at stake. In my opinion, the question is, what limitations, if any, are on Congress? If they can mandate that we all purchase health insurance, essentially saying that economic inactivity can be regulated via the Commerce Clause, then what can’t they legislate?
Over at his AJC blog, Jay Bookman writes (emphasis mine):
Given the case law and precedents, if the Supreme Court decides to overturn significant portions of the Patient Protection and Affordable Care Act, it will also be forced to overturn at least 70 years of its own jurisprudence on the Commerce Clause. The entire balance of power between the states and the federal government and the federal government and business would change, with repercussions that would echo for decades.
Um, no. With all due respect to Jay, who I read on a regular basis despite only agreeing with him occasionally, shooting down the individual mandate would not overturn prior court precedent dealing with the Commerce Clause, rather it would place actual limitations on federal power. Jay claims that it would “reverse course on a 70-year trend.” So it’s not that the Supreme Court will go back and undo 70 years of precedent — which is incredibly unlikely, Jay is worried that they won’t continue course by expanding the Commerce Clause, further blurring — or, in this case, completely erasing — the constitutional limitations on Congress.
It’s ridiculous to suggest that, by not expanding the Commerce Clause to allow Congress to regulate economic inactivity, the Supreme Court is undoing decades of case law and prior precedent. Don’t get me wrong, I would be thrilled to see the Supreme Court actually uphold the intent of the Founding Fathers on the Commerce Clause, but just isn’t going to happen.