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.

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