Exactly two years after Seth Lipsky, author of The Citizen’s Constitution: An Annotated Guide, described the impending passage of Obamacare as a “constitutional moment,” the Supreme Court decided to review Obamacare’s constitutionality, allocating five and a half hours for oral argument — an indication of the seriousness of the moment.
At the time Lipsky made his observation – four months before Obamacare was enacted – many thought an enumerated powers challenge unlikely, given the Court’s expansive reading of the Commerce Clause since it acquiesced in FDR’s New Deal about 70 years ago. But six appellate courts have now struggled with the issue, producing conflicting opinions totaling 654 pages. The latest acknowledged a “troubling” fact: not only is the Obamacare mandate unprecedented, but if upheld there is no “limiting principle” (watch Elena Kagan try to address the “Broccoli” hypothetical here) that would preclude government-mandated purchases of things such as Obamacars, government bonds, etc.. As the D.C. Circuit noted:
The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause.
There are several supreme ironies in the current constitutional moment — not the least of which is that a president’s attempt to “fundamentally transform” the country may lead, if not to a landmark legal precedent limiting the power of Congress to do so, then to the failure of his own re-election effort, as the voters avail themselves of their own “constitutional moment” — about four months after the Court rules next June.
The problem with Kagan's broccoli hypothetical (video link in the other link) is that Coburn never really let her dangle in the wind as he should have. He, like just about everyone in Congress, couldn't keep his own mouth from jabbering. n nI really wish he had not let her off the hook by answering the question for her. n nSheesh! What a waste of an opportunity a couple of years ago.
Maybe the courts should consider this would not be a "troubling fact" and there would be "a limiting principle" if they didn't insist on defining something as "commerce" when they need an excuse for upholding some law they can't find a justification for anywhere else and they don't have the guts to do the right thing and find unconstituional. The Commerce Clause has become a last refuge for judicial weasels. I seriously doubt the Founders intended it to be thus.
Congress only has the power to lay and collect taxes. The individual mandate in the ObamaCare law is a penalty. Congress can not penalize citizens for not buy a private product from a private company.