More fun from CNS News, which has been pressing Democrats on the constitutional question for months and as often as not receiving headache-inducing answers like this. (When asked, Madam Speaker wittily retorted “Are you serious?” and went on her merry way.) There is, of course, no such thing as the Good and Welfare Clause, but if the chairman of the House Judiciary Committee can’t be bothered to read the bills he’s voting for, I guess it’s too much to expect him to read the Constitution too. There is such a thing as the General Welfare Clause in Congress’s power to tax and spend, which I assume is what he’s banking on. Is he right? Orin Kerr, with a heavy heart, says … probably:

In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9–0 (or possibly 8–1) vote to uphold the individual mandate.

Blogging about such issues tends to bring out some unhappy responses, so let me be clear about a few things: (a) I don’t like the individual mandate, (b) if I were a legislator, I wouldn’t have voted for it, (c) I don’t like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.

He’s totally right that if the Supremes follow their insanely expansive precedents about the Commerce Clause, O-Care should be fine. Even so, I’m skeptical that it’ll be as easy as he thinks. Part of the reason is political — as the legal realists cynically said, “the law is what the judge had for breakfast,” and five conservative justices will find a mandate hard to digest — but part of it is legal too. After the Raich decision, this is their last chance to draw any sort of line in the sand on the Commerce Clause. If Congress can direct you to buy certain goods and services, its economic reach via the CC will be so enormous as to all but swallow the concept of enumerated powers. Law prof Richard Esenberg:

The commerce power has certainly become capacious. Even lawyers whose last exposure to Constitutional Law was in law school are vaguely familiar with the ways in which the commerce power had been used to reach activity bearing, at best, a weak family resemblance to the transaction of business across state lines. Most recently, in Gonzales v. Raich, the Court held that Congress can prohibit persons from growing and consuming marijuana at home because of its posited impact on interstate traffic in weed.

Still, the individual mandate may be different. Professor Barnett writes that “[w]hile Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company.” It’s one thing to be subject to regulation because you are providing for yourself what you would otherwise buy in an interstate market. It’s quite another thing to argue that, because your refusal to consume a product may affect interstate commerce (if the young and healthy do not insure, the old and sick will have to pay more), you can be made to buy it…

It will be tragic [if the Court upholds O-Care] because the notion of a Congress limited by the scope of its enumerated powers will have finally suffered the coup de grace. The Bill of Rights (once famously – and now ironically – thought to be unnecessary given the structural limits on the power of the national government) will become the only limitation on the power of Congress. If Congress can require you to buy health insurance because of the ways in which your uncovered existence effects interstate commerce or because it can tax you in an effort to force you to do anything old thing it wants you to, it is hard to see what – save some other constitutional restriction – it cannot require you to do – or prohibit you from doing.

Quite so, and the stakes won’t be lost on Roberts and company. That’s not to say we’ll win — if I had to bet, I’d guess that Kennedy will cave to the left — but my hunch is that we’re looking at a 5-4 decision. What could go wrong?