Obamacare, Romneycare, Commerce Clause, Takings Clause

According to analysts and sources, it looks as if Obamacare's individual mandate will certainly fall. Tough questions from Justice Kennedy and even Sotomayor makes it clear that moderates and liberals have severe concerns with the government's case argued mainly by Donald Virrilli.

Virrilli claimed, in essence, that those without health insurance should be covered under the Commerce Clause that allows Congress to set regulations. Their non-action depresses the market and makes them part of it.

Astounded justices savaged that claim, rightfully fearing that it could apply to many different situations.

The main debate seems to be whether or not the loss of the mandate means that the Court should invalidate the entire act. Conservative justices posed the thought that Congress would never have passed the rest of the act without the mandate. It is not the Court's job to read the mind of the legislative. Much as it pains me to say this, from a strict Constitutional standpoint, they probably should not invalidate the whole act. That would infringe upon the legislative prerogative.

I won't cry too many tears if they do, but I fear judicial creeping into the legislative arena as much as I fear overuse of the Commerce Clause.

The Court should spend some time looking at the Commerce Clause. Since the Civil Rights Acts of the 1960s, it has been very liberally interpreted. According to Vanderbilt University law professor James W. Ely in The Guardian of Every Other Right, the commerce clause was meant to help Congress maintain free trade among the states, not restrict it. While some cases, such as National League of Cities v. Usery (1976) have nibbled away at it, no Court has taken the opportunity to establish a perimeter fence around the clause.

Currently, the clause is used to justify a wide scope of federal action. Should the Court decide to restrict it to its interpretation prior to the 1960s, meaning that Congress cannot regulate everything that moves, this could bring huge changes to American law.

It will impact the Environmental Protection Agency's legal basis for action in many cases. The EPA relies heavily on legislation that uses the Commerce Clause as part of its foundation. Restricting its legal scope of action can head off many of the anti-industry interpretations that it has lately made.

The war on drugs would change. While intoxicants that require production might continue to fall under federal jurisdiction, those that simply spring from the ground would no longer be a federal matter unless they crossed state lines. States that wish to legalize medical marijuana, for instance, could do so without federal harassment as long as the product was wholly contained and sold within the state. California already interprets the law in this fashion, but sellers still are regularly harassed by the feds.

In fact, a state could completely legalize marijuana and the federal government would be powerless within state jurisdiction.

No one should fear repeal of the Civil Rights Acts. That being said, it would be wise to revisit the issue and update them, using a foundation that does not require the Commerce Clause as support.

****************************************************************
Now what about the future of Romney's plan in Massachusetts? If the justices limit themselves to the Commerce Clause, it is safe because it is a state action. But it is very possible that they could also apply the Fifth Amendment's takings clause as well. No life, liberty, or property can be forfeited or taken for public use without just compensation. While one can argue that the insurance one gets is the "just compensation," the justices could find that this is a deprivation of liberty.

And that kills Romneycare.

*****************************************************************

That leads me to a point of speculation. Donald Virrilli, by all accounts, is a pretty smart guy. This Supreme Court case was not his first go-round.

So why the mind-numbingly bad argument? Why did Justice Kagan actually have to step in to help him to answer some of the tougher questions?

I'll just flat out speculate that Virrilli did not come up with the argument himself. It was a bad case that he did not present well at some points. An argument that runs so counter to American tradition, yet also looks so bumbling, probably came from Barack Obama himself.

If it did, and I was Virrilli, I would resign and let the public know.

***********************************************************************