Justice Scalia voiced his concern that while the government was arguing that its regulation was necessary, it was not addressing the question of whether it was “proper.” The government’s claim violated “an equally evident principle in the Constitution,” Scalia said, “which is that the federal government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers.”
Both before and after the arguments, I had revealing conversations with a liberal professor in the courtroom. He agreed that the government’s chief problem is that it had not provided a limiting factor or boundary line in any of its previous arguments. Thus, if the Supreme Court agrees that Congress has the power to compel the purchase of an insurance policy from a private company, it could compel the purchase of virtually anything considered good or prudent. After the arguments ended, the professor agreed that Verrelli had been unable to come up with a concise and reasonable answer to that question, which was asked of him multiple times by different justices.
Liberal commentators and media analysts have claimed for some time now that this is an easy case for the government and that there was no chance the Court would strike down the individual mandate. After today’s arguments, they must be in shock. The conservative justices were clearly skeptical that the Commerce Clause grants the federal government this authority. Furthermore, Justice Kennedy, who replaced Sandra Day O’Connor as the swing vote on the court, was obviously having trouble with Solicitor General Verrelli’s claims.
Based on the questions posed by the justices today, the possibility that the mandate may be struck down went up sharply.
Tomorrow: final day of arguments. Severability in the morning and the Medicaid expansion of ObamaCare in the afternoon.