Audio: Scalia lectures Verrilli on enumerated powers

posted at 8:30 pm on March 27, 2012 by Allahpundit

The guy who uploaded this to YouTube calls it a “benchslap.” It’s loads of fun, and the point about limited powers will sound familiar. The key part comes early when Scalia jumps in to challenge Verrilli’s citation of Court precedent. Those cases dealt with commerce, he says; in this case, the legislation is aimed at people who aren’t participating in commerce, i.e. people without insurance. That’s a gut-punch to the left since, once you make that move conceptually, the Commerce Clause defense of the statute is hanging by a thread. You can follow his thinking over the rest of the clip from there. If it’s not commerce, then Congress has no power to regulate it, and if Congress has no power to regulate it, then the Tenth Amendment says this is a matter for the states. And to think, a few days ago, Democrats thought they might be able to use Scalia’s Raich opinion to swing him over to their side.

Roberts was a bit more equivocal in today’s arguments but read Philip Klein’s analysis of the rhetoric he used in his comments from the bench. There were an awful lot of phrases in there suggesting he was arguing from belief against the statute, not merely as a devil’s advocate to probe the lawyers’ arguments. Meanwhile, over at SCOTUSblog, Kevin Russell looks at Roberts’s and Alito’s questioning and wonders, “Is Kennedy the only possible fifth vote for the government?” His conclusion: Yep, pretty much. Exit question: C’mon, a Reagan appointee’s not really going to be the fifth vote for the ObamaCare mandate, is he? Good lord.


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Comment pages: 1 2

Verrilli:

It will be a very serious departure from what the Court has said, that when Congress is regulating economic activity with a substantial effect on interstate commerce, that will be upheld.

Funny how he settled back into this incomplete law student statement of law…after being asked about the limitations on the Commerce Clause.

Crispian on March 27, 2012 at 8:55 PM

I remember thinking about this when I was a law student. How does the power to regulate interstate commerce morph into the power to regulate “economic activity with a substantial effect on interstate commerce”? That is the root of much mischief in Constitutional law. If we are lucky, this decision could be a major roll-back of existing federal intrusions on America’s economic life.

ricg on March 27, 2012 at 9:57 PM

I haven’t checked out the gun control, but I’m sure it’s fairly difficult to have them there. There are other laws I wouldn’t be happy with either, and it was expensive there. However, the tradeoffs were worth it to me. It has a lifestyle that suits me, especially the endless outdoor activity options and great weather.

behiker on March 27, 2012 at 9:13 PM

So, you would be willing to give up your freedom to live in a utopian place. Might as well stay here.

chewmeister on March 27, 2012 at 9:59 PM

Stereotypes aside, if you look at Scalia’s jurisprudence he is generally very wishy-washy on the role of government and in the past he has frequently sided with a big, intervening government on both social and economic issues. People who take him as this libertarian jurist simply don’t know what they are talking about.

I was concerned he may swing left on this one, but judging by how he pounced on Verrilli today I think you can safely dismiss any concerns over that. He attacked the argument like a justice with his mind made up who was delighting in poking some holes in a patently weak argument.

For better or for worse, the hopes of both the left and the right are pinned on Kennedy, and after his exchanges today you have to feel the odds are good that he votes to strike the mandate. The law as a whole is probably a bridge too far for a majority.

Long way to go, though, and in big, nation-defining cases like these the tallies can change quickly between oral argument and the release of the written decision. Go read the history of Brown.

pwh on March 27, 2012 at 10:04 PM

They force me to buy the bombs they drop.

dft2000 on March 27, 2012 at 9:42 PM

That’s one way to look at it; here’s another.

“We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm.”

- George Orwell

See, there’s an actual cost (in dollars, and the precious treasure of our fighting men and women) to maintain our freedom.

On the whole, I’d rather buy my share of a bunker buster, or a drone, than be forced to pay for expensive, ill-fitted-to-me health care.

massrighty on March 27, 2012 at 10:10 PM

FIFY, the remake is supposed to take place in Wisconsin.

RickB on March 27, 2012 at 9:31 PM

Proud to be a (displaced) cheesehead.

chewmeister on March 27, 2012 at 10:11 PM

They can squawk all they want during the oral argument, let’s see how they vote in private – my guess is most will disappoint us. Just hopefully we can find five who will overturn this mess… and hopefully hopefully hopefully we’ll see appointments to the court make sure future messes like this not come down to the wire.

Ukiah on March 27, 2012 at 10:12 PM

Scalia is such a hack! He’s using one argument which is a general principle and ignoring case precedent. He’s talking like some night time talk show host, so devoid of objectivity and principles.

0bamaderangementsyndrom on March 27, 2012 at 10:14 PM

I was hoping to hear the argument that one cannot be forced to enter into a contract, which is what the individual mandate would do. Ken Cucinnelli, atty-general of VA was talking about this argument on the radio today, and it is a very powerful argument. I guess no one is taking that approach?

smellthecoffee on March 27, 2012 at 10:18 PM

Scalia is such a hack! He’s using one argument which is a general principle and ignoring case precedent..

0bamaderangementsyndrom on March 27, 2012 at 10:14 PM

Yeah, let’s just ignore the Constitution. It’s old and wrinkly anyway.

pedestrian on March 27, 2012 at 10:20 PM

Scalia is such a hack! He’s using one argument which is a general principle and ignoring case precedent. He’s talking like some night time talk show host, so devoid of objectivity and principles.

0bamaderangementsyndrom on March 27, 2012 at 10:14 PM

Actually, he’s talking like a justice who knows the constitution. There is no case precedent when it comes to Obamacare. There is no “objectivity” in the constitution. It’s spelled out in clear English.

chewmeister on March 27, 2012 at 10:21 PM

I was hoping to hear the argument that one cannot be forced to enter into a contract,

smellthecoffee on March 27, 2012 at 10:18 PM

You have the choice of paying the fee tax penalty tax fee. And they got the opinion that you would not be breaking the law if you did that, so implicitly they did discuss that.

pedestrian on March 27, 2012 at 10:21 PM

pedestrian on March 27, 2012 at 10:21 PM

Thanks. I missed that. Looks like Cuccinnelli did, too.

smellthecoffee on March 27, 2012 at 10:24 PM

My God, you just have to love lawyers, you know?

They argue that there should be a mandate to prevent the young from “free loading” – not paying now, and joining later as they age and develop medical problems. The only problem is, once you get to be over about 45 years of age Obamacare will essentially tell you that you’re not worth treating. Anybody remember Emmanuel’s “analysis” on the declining productivity of people as they age?

Socialized health care revolves around the simple premise that you force people to pay, especially when they don’t need it, and then fail to treat them when they do need it.

Mr Galt on March 27, 2012 at 10:32 PM

It’s old and wrinkly anyway.

pedestrian on March 27, 2012 at 10:20 PM

That’s what she said!

massrighty on March 27, 2012 at 10:35 PM

Question, which presidential candidate advocates for Constitutional federal government with powers restricted to those that are specifically enumerated in the Constitution?

1. Mitt Romney
2. Rick Santorum
3. Newt Gingrich
4. None of the above

antifederalist on March 27, 2012 at 10:35 PM

First, the important thing is that at minimum 4 justices are perfectly happy allowing the Congress to do pretty much anything. Beyer’s little sing song voice (and ideas) is very depressing.

Second, it is nice that this isn’t the slam dunk that the left was expecting. Their little meltdown today revealed the arrogance of power that they represent.

But, the left’s little melt down moved the needle to slightly favorable on Intrade. Kennedy is trying to figure out how he can be the HERO….yes, the Reagan Judge who was the HERO

r keller on March 27, 2012 at 10:36 PM

Just listened to the arguments.

Ginsberg is a lost cause. Kagan isn’t far behind.

I was impressed with Sotomayor’s questioning of both sides. And Breyer backed off, almost immediately, when Clemente pointed out that if the “act” of being born enters you into “the market”, then there is no more plenary power assumed by Congress than to regulate it.

This might go 7-3…?

Tuning Spork on March 27, 2012 at 10:36 PM

It’s very humorous that Obama’s flack, Verrilli is having a time trying to pitch, “Because we say so!’ is having such a hard time going up against the Constitution.

Verrilli got *itch slapped hard today!

Jack Deth on March 27, 2012 at 10:37 PM

Oops. I meant:

7-2…? Or 6-3…?

Tuning Spork on March 27, 2012 at 10:38 PM

So, you would be willing to give up your freedom to live in a utopian place. Might as well stay here.

chewmeister on March 27, 2012 at 9:59 PM

Since I don’t own a gun, I wouldn’t be giving up anything. Like I said, there are tradeoffs, some good and some bad. Weighing them all together is what helps me decide. Have you been to NZ?

behiker on March 27, 2012 at 10:39 PM

Since I don’t own a gun, I wouldn’t be giving up anything. Like I said, there are tradeoffs, some good and some bad. Weighing them all together is what helps me decide. Have you been to NZ?

behiker on March 27, 2012 at 10:39 PM

Just because you don’t own a gun doesn’t mean you don’t have the right to keep and bear arms. That’s another thing that gets missed in the whole “right to health care” debate. You have a right as a natural consequence of being human whether you exercise it or not.

gryphon202 on March 27, 2012 at 10:41 PM

Scalia is such a hack! He’s using one argument which is a general principle and ignoring case precedent. He’s talking like some night time talk show host, so devoid of objectivity and principles.

0bamaknobswallower on March 27, 2012 at 10:14 PM

Heh. You aren’t going to have much success arguing against Antonin Scalia from Grandma’s basement, Sport.

Get the hamburger grease off your uniform and STFU … there are high school and college graduates here discussing the issues of the day.

Jaibones on March 27, 2012 at 10:43 PM

Don’t make me leave America for New Zealand. Because if this crap prevails, America as we know it is dead.

carbon_footprint on March 27, 2012 at 8:42 PM

Good choice! I scouted out NZ this past November and December. Seems like it would be a good place to go. It reminded me of what it was like in the US in the 60s and 70s… safe, friendly, simple… and people wished me “Merry Christmas”… not that “happy holidays” crap.

behiker on March 27, 2012 at 8:58 PM

Supposedly the Trout Fishing in NZ is world class. And so is the Hiking. The Milford Track is one of the world’s great hikes, and our current Secretary of State’s Grandfather, the first guy to summit Everest, trained in NZ’s Southern Alps.

Del Dolemonte on March 27, 2012 at 10:48 PM

Scalia is such a hack! He’s using one argument which is a general principle and ignoring case precedent.

0bamaderangementsyndrom on March 27, 2012 at 10:14 PM

Since when is the SCOTUS bound by precedent? Even their own.

JohnGalt23 on March 27, 2012 at 10:53 PM

Since when is the SCOTUS bound by precedent? Even their own.

JohnGalt23 on March 27, 2012 at 10:53 PM

SCOTUS isn’t bound by the constitution as they should be.

gryphon202 on March 27, 2012 at 10:57 PM

My God, you just have to love lawyers, you know?

They argue that there should be a mandate to prevent the young from “free loading” – not paying now, and joining later as they age and develop medical problems. The only problem is, once you get to be over about 45 years of age Obamacare will essentially tell you that you’re not worth treating. Anybody remember Emmanuel’s “analysis” on the declining productivity of people as they age?

Mr Galt on March 27, 2012 at 10:32 PM

Great catch!

ThePrimordialOrderedPair on March 27, 2012 at 11:01 PM

Scalia is such a hack! He’s using one argument which is a general principle and ignoring case precedent.
0bamaderangementsyndrom on March 27, 2012 at 10:14 PM

3 liberals argued Verrellis case for him whil he stuttered like a mental patient.

But I’ll bet you’re fine with that.

Chuck Schick on March 27, 2012 at 11:35 PM

Scalia is such a hack! He’s using one argument which is a general principle and ignoring case precedent. He’s talking like some night time talk show host, so devoid of objectivity and principles.

0bamaderangementsyndrom on March 27, 2012 at 10:14 PM

If by “case precedent” you mean Wickard and Raich, those ought to be overturned, too.

Bad cases don’t get less bad with age. Just inertia.

In any case, those precedents might suggest the principles that might allow Obamacare, but they don’t require it. If they did, this wouldn’t likely be before the Supreme Court.

The_Jacobite on March 27, 2012 at 11:38 PM

Supposedly the Trout Fishing in NZ is world class. And so is the Hiking.

Del Dolemonte on March 27, 2012 at 10:48 PM

I can verify all of that. World class. Worth the trip.

The_Jacobite on March 27, 2012 at 11:41 PM

Obama to SCOTUS:
“Elections have consequences, and at the end of the day, I won.”
Nana Pelosi adds:
“the heck with the darn old racist Constitution, The Declaration references the right to ‘a healthy life’ and the ‘liberty to pursue happiness’..THAT means ‘Free Healthcare’…bank it!!!”

Strike Hornet on March 27, 2012 at 11:45 PM

Scalia is such a hack! He’s using one argument which is a general principle and ignoring case precedent.

0bamaderangementsyndrom on March 27, 2012 at 10:14 PM

“In for a penny, in for a pound” will not work for a law that will substantially change the balance of ennumerated powers in the United States, just as there is a major difference in the burden for a prosecutor to prove first degree murder over involuntary manslaughter. There must be a constitutional basis for requiring every citizen in the U.S., in order to be a citizen, to buy health care.

There is none.

itsspideyman on March 27, 2012 at 11:53 PM

0bamaderangementsyndrom on March 27, 2012 at 10:14 PM

That’s rich coming from someone willing to sell our progeny into penury slavery for there dreams of utopia. You have even less real principles than you accuse Scalia of lacking.

chemman on March 28, 2012 at 12:11 AM

The only problem is, once you get to be over about 45 years of age Obamacare will essentially tell you that you’re not worth treating. Anybody remember Emmanuel’s “analysis” on the declining productivity of people as they age?

Mr Galt on March 27, 2012 at 10:32 PM

That was the consensus of liberals over at the LA Times when they were discussing Chaney’s heart transplant.

unclesmrgol on March 28, 2012 at 12:33 AM

Since when is the SCOTUS bound by precedent? Even their own.

JohnGalt23 on March 27, 2012 at 10:53 PM

They will find some provision in some other country’s common law and cite that as precedent.

pedestrian on March 28, 2012 at 12:44 AM

Who would have thought that the Republic of the United States of America hangs in the balance, and one man – Kennedy – gets to decide if the country continues to live, or falls into civil war.

One man. I wonder how he sleeps at night knowing that he gets to decide the fate of an entire nation.

Food for thought: We are one stroke away from darkness the likes of which we have never known.

SilverDeth on March 28, 2012 at 12:59 AM

Ruling in June. April, May, June. 2 1/2 months of MSM spewing on how this helps Obama. Get out the wellies.

birdhurd on March 28, 2012 at 1:21 AM

Still preparing for worst but hoping for best.

Yakko77 on March 28, 2012 at 1:47 AM

Scalia is the man…all the Reagan folks can teach Newt Horndog and Woody some civility to drop out

Newt Fastso on life support with his failed campaign

Next will be Woody to drop out after Romney thumps the jerk in Pennsylvania

IRONY= Woody’s 2nd career in politics will end after Pennsylvania primary like his first as a failed senator crushed by Bob Casey in 2006

all the Woody drones on hotgas will return to their mom’s basement watching porn

nparga23 on March 28, 2012 at 2:12 AM

all the Woody drones on hotgas will return to their mom’s basement watching porn

nparga23

No porn involving Santorum*, I hope!

* That is to say, the Dan Savage definition of Santorum, which if you have to ask, you don’t want to know!

Zombie on March 28, 2012 at 2:51 AM

I read the transcripts. Yes. I took the time to read them start to finish. First up was the government’s guy and I thought, usual stuff, stuttering, rephrasing, round about answers to form the picture he wanted but he was getting HAMMERED when HE changed it to being NOT of a commerce clause issue but a TAX issue and then he got BOMBARDED to which the leftists on the court HAD TO STEP IN and help the dude.

Not kidding. Read the transcript. The judges on the left LED the government’s AG argument into a coherent thought process again and the rightists on the court just sat back and let it happen. Why? I would too. If your own justices have to make the case from the bench because the lawyer presenting is so bad, let them try and then the rightists came in and redirected against the lawyer who now had 2 issues: commerce clause or tax issue? It was an unmitigated disaster!

Next came the AG for the 26 states and his answers were tight, on point when asked, covered every past commerce clause issue that the justices might fall back on to make a point and he cut those arguments to shreds as a reason to use keep this law. He was smooth AND he got in every talking point – especially about cars and not buying one might lead to someone going out of work and going on welfare so should we all be forced to buy a car?

The person I thought that had good points to give but was jumbled in presentation? National Small Business Association. He tried but after the stellar performance of the 26 state AG – it almost seemed like second string was put in.

athenadelphi on March 28, 2012 at 4:13 AM

They are only pulling the commerce clause scam because they did not have the votes to raise taxes.

Otherwise it would be a tax.

Lonetown on March 28, 2012 at 5:34 AM

athenadelphi on March 28, 2012 at 4:13 AM

There were a few lines of attack on the ACA that I particularly liked. When they asked Verrilli about whether we could be compelled to purchase Death Services Insurance it was great. After all, we’re all going to die and some people will get a free ride by not paying at other people’s expense! My first thought was, don’t give the Feds any more bright ideas :-) My second thought was to start up a Death Insurance company!

Another line I thought was good was asking about why we should be forced to buy coverage for services we will never use. Such as forcing a male to buy prenatal care for himself. Perhaps I should demand a pap smear if this law takes effect.

The government says that because of the guaranteed issue parts of the ACA, mandate is necessary to pay for it. But it was pointed out that the problem only exists because the law created it!

The ultimate question, of course, is what are the limits to Federal power? What can’t they force us to do or buy once they establish that we are obliged to make purchases of anything affecting commerce (there is no longer such a thing as commerce just within a state, so every market is interstate)?

MJBrutus on March 28, 2012 at 5:54 AM

Verrilli and Team Obama trying to hide behind one of those damn penumbras?

The Constitution is actually quite clear on the limitations of the federal government. The Founders intended it so. For good reason.

The modern day obfuscation of application of the Constitution got its kick start under FDR’s New Deal [a Progressive program] when FDR and Congress tried to do whatever whenever to “help” the children.

Gotta do it for the children…have you heard that Progressive appeal lately? Anyone? Bueller?

Over the past half-century the Left, Progressives, naturally, have tried again and again through Congress and more so the Courts to expand the application of the Commerce Clause, and to introduce into America’s mindset that the Constitution needs to be a living document in tune with the times, not some old dog-eared list of rules and limitations on government.

That slippery slope the Progressives constantly warn us about?

The one they embarked all of us on over a half century ago?

Looks like Verrilli just started his slide, and is going to take team Obama along with him.

The irony is sweet.

The Mandate in toto is UnConstitutional.

That it may cause discomfort to a small segment of the population should it be struck down is no defense…not in the legal sense.

Appealing to penumbras and emanations and wise Latinas and the Skittles Rainbow is no foundation for law. Nor should it ever be.

As an old and dear former professor of mine said years and years ago…bad law written for all the best of reasons remains bad law.

ObamaCare is bad law.

Kill it.

coldwarrior on March 28, 2012 at 6:41 AM

We may never know all the bad law that was in Obamacare.

Thank God!!!

Roy Rogers on March 28, 2012 at 6:47 AM

Chuck Schick on March 27, 2012 at 11:35 PM

heh

pretty pathetic ain’t it..

cmsinaz on March 28, 2012 at 6:49 AM

Hey Allah, you got a huge shout out in Geraghty’s piece in National Review!! Woot!

txmomof6 on March 28, 2012 at 7:38 AM

Scalia is such a hack! He’s using one argument which is a general principle and ignoring case precedent..

0bamaderangementsyndrom on March 27, 2012 at 10:14 PM

By that logic, Plessy v Ferguson would not have been overturned.

NoFanofLibs on March 28, 2012 at 7:56 AM

Obamacare really needs to be repealed, in its current form. We don’t need 159 new boards, don’t need 16,000 new IRS agents, don’t need to be forced to purchase something just because the Democrats say so. New leadership coming soon, and a new, better, healthcare proposal will be available for bi-partisan discussions and vote. Stay tuned.

Amazingoly on March 28, 2012 at 8:00 AM

By that logic, Plessy v Ferguson would not have been overturned.

NoFanofLibs on March 28, 2012 at 7:56 AM

P v.F was overturned???

What are us racist conservative bitter-clingers gonna do now??? :-)

You are, of course, correct.

I am amazed at the near total lack of understanding of federalism on the part of so many, too many, Americans.

It is like the US government has inculcated nearly all of the citizens into believing that the federal government and only the federal government can take care of their needs, wants, desires and personal hygiene problems, among other things.

To try to defend Obamacare because a small segment of the population may or may not experience temporary hardship?

When did the health care of individual citizens become a major concern of the federal government? Cannot states, counties and individual communities address this more directly and better?

coldwarrior on March 28, 2012 at 8:04 AM

healthcare proposal will be available for bi-partisan discussions and vote. Stay tuned.

Amazingoly on March 28, 2012 at 8:00 AM

There are simple solutions that do not require thousands and thousands of new government employees…nor the expense of a trillion dollars.

Now, about the over-use of bi-partisan.

Bi-partisanship is what got us in the mess…when GOP principles were sacrificed in order to not be seen as the bad guy.

Should have shut down the entire government (less necessary defense services) and forced the Reid-Pelosi-Obama cabal to provide to the public the entire Obamacare bill long long before it became law.

But, bi-partisanship got in the way.

And…personally…bi-partisanship indicates only two political parties in the United States. Even Maxie Waters has stated that bi-partisanship is enshrined in the Constitution.

Kinda leaves a lot of us Libertarians, and quite a few federalists, among others. pushed out of the picture.

coldwarrior on March 28, 2012 at 8:10 AM

They force me to buy the bombs they drop.

dft2000 on March 27, 2012 at 9:42 PM

Funny you use a Federal constitutional mandate to make your argument…we have to have a military to protect us. You didn’t know that before you posted your comment?

right2bright on March 28, 2012 at 8:20 AM

It’s doesn’t really matter much what is said in oral arguments. The final votes will say more than enough.

Egfrow on March 28, 2012 at 8:33 AM

P v.F was overturned???

coldwarrior on March 28, 2012 at 8:04 AM

I’ll bet Deranged0bamaSyndrome doesn’t even know what Plessy v. Ferguson was.

NoFanofLibs on March 28, 2012 at 8:34 AM

One of the precedents that ObamaCare has going for it is Wickard v. Filmore, a case in which a farmer who was growing wheat exclusively for his family and his livestock was held to be answerable to the Federal government, despite not participating in any actual commerce. Similarly, Gonzales v. Raich maintained that the Feds could regulate and criminalize marijuana growing even in states where it was legal, and where it was done strictly for one’s own consumption.

In both of the above cases the Court sided with breath-taking power grabs by the Federal government. It could happen again. So, let’s not count our chickens until they hatch.

Henry Bowman on March 28, 2012 at 8:40 AM

If I had to guess it will be a 5-4 or 6-3 decision in favor of upholding little dictator care. Kennedy the 5th and Roberts the 6th as Roberts is part of the establishment and will do their bidding. The fix is in. These questions by Roberts and Kennedy are just to make the side that wants the law struck down feel good, like throwing a dog a bone.

bgibbs1000 on March 28, 2012 at 8:48 AM

When did the health care of individual citizens become a major concern of the federal government? Cannot states, counties and individual communities address this more directly and better?

coldwarrior on March 28, 2012 at 8:04 AM

I’m also curious as to why the Federal Govt needs to be involved in:
People’s retirement pensions
Health insurance INTRAstate.
Student Loans
Depositor’s Insurance
Flood Insurance
Crop INsurance
Agriculture
Education
etc…

Badger40 on March 28, 2012 at 8:51 AM

0bamaderangementsyndrom on March 27, 2012 at 10:14 PM

Predictable

Sonosam on March 28, 2012 at 8:52 AM

I’m also curious as to why the Federal Govt needs to be involved in:
People’s retirement pensions
Health insurance INTRAstate.
Student Loans
Depositor’s Insurance
Flood Insurance
Crop INsurance
Agriculture
Education
etc…

Badger40 on March 28, 2012 at 8:51 AM

This all stems back to the New Deal and the SCOTUS suddenly opening up the interpretation of the commerce clause to include anything that “affects” interstate commerce rather than interstate commerce itself. The original interpretation of the commerce clause until then was that it was intended to allow the federal gov’t to keep states from engaging in protectionism against each other and passing laws treating products / businesses from a different state different than products / businesses within the state.

SCOTUS had a sudden reversal of this and decided to uphold some New Deal legislation on the theory that growing crops for your own use “affects” interstate commerce because then you were not purchasing crops grown by someone else. After that all bets were off and the commerce clauses unlimited ability to give the federal power absolute power grew and grew until we are here, where SCOTUS has to decide whether the constitution has meaning or only the commerce clause counts.

Monkeytoe on March 28, 2012 at 8:58 AM

I’ve said it before, and I’ll say it again:

Have stake. Hammer ready.

Turtle317 on March 28, 2012 at 9:12 AM

I’m also curious as to why the Federal Govt needs to be involved in:……………
Badger40 on March 28, 2012 at 8:51 AM

Because the more regulations there are the more power the regulators have. It’s that simple.

tommyboy on March 28, 2012 at 9:18 AM

Has anyone noticed that MSNBC (one of Obama’s primary propaganda machines) has not even the slightest mention of Obamacare this morning. They are responding like the three monkeys . . . hear no evil, speak no evil and see no evil.

rplat on March 28, 2012 at 9:24 AM

Was the state-centric nature of insurance brought up during yesterday’s arguments? Since each state regulates insurance separately, how does Uncle Sam have the ability to regulate insurance?

Monkeytoe – one funny thing about Wickard v. Filburn that was touched on yesterday. The farmer, after he was penalized, was not forced to buy wheat. He could sell some of his livestock, reducing his need for wheat. Or let some of his animals starve. Or kill them for their meat. In most situations, there are more than 2 options. And that’s also true of health care. If you don’t have insurance, and you get sick, you can a)buy insurance, b)pay for your health care yourself, c)seek assistance from friends, family, or charities, d)pay what you can, then file for bankruptcy, e)go to an emergency room, f)go to a country that has a liberal health care system you can take advantage of g)etc. But Obamacare says the only way anyone can access health care is via insurance.

hawksruleva on March 28, 2012 at 9:25 AM

One of the precedents that ObamaCare has going for it is Wickard v. Filmore, a case in which a farmer who was growing wheat exclusively for his family and his livestock was held to be answerable to the Federal …

Henry Bowman on March 28, 2012 at 8:40 AM

That’s Wickard v. Filburn

hawksruleva on March 28, 2012 at 9:27 AM

ObamaCare is bad law.

Kill it.

coldwarrior on March 28, 2012 at 6:41 AM

Coldwarrior killed it with his/her post. Well said.

cmsciulli on March 28, 2012 at 9:27 AM

“C’mon, a Reagan appointee’s not really going to be the fifth vote for the ObamaCare mandate, is he? Good lord.”

Sandra Day O’Connor would have.

Sandra Day O’Connor would have added five balancing tests, all un-prioritized and each unable to be resolved in any case without going to the court again, and every new visit would have been as occasion for further legislation from the bench.

Sandra Day O’Connor would have found Obamacare constitutional for the next twenty-five years, then unconstitutional after that, then constitutional again, or not, depending on how the court felt at that time.

David Blue on March 28, 2012 at 9:32 AM

Lost in all of this is the original meaning of “regulate,” which was “to make regular.” I.e. to remove encumbrances to, or help streamline, free trade among the states.

That’s the actual limit of the commerce clause.

EddieC on March 28, 2012 at 9:37 AM

David Blue on March 28, 2012 at 9:32 AM

+1

EddieC on March 28, 2012 at 9:38 AM

Thank goodness ObamaCare doesn’t authorize federal agents to enter our homes and forcibly administer drug tests once per month, or Scalia would vote to uphold it.

EddieC on March 28, 2012 at 9:41 AM

If it’s not commerce, then Congress has no power to regulate it, and if Congress has no power to regulate it, then the Tenth Amendment says this is a matter for the states.

Let’s make sure we speak correctly about this, AP: it’s interstate commerce that Congress can regulate – not just commerce.

GWB on March 28, 2012 at 9:47 AM

We may never know all the bad law that was in Obamacare.

Thank God!!!

Roy Rogers on March 28, 2012 at 6:47 AM

From your mouth to God’s ears……

LibraryGryffon on March 28, 2012 at 10:49 AM

If they don’t kill this mess, I can see the coming mandates that we must buy CFLs (not just that others are illegal), everyone must buy a Volt, everyone must buy solar panels for their roof, etc, etc.
Hey – it’s for our own good – and for the good of interstate commerce – right?//

dentarthurdent on March 28, 2012 at 11:00 AM

Apparently over the weekend, someone died and made Anthony Kennedy king. The fate of constitutional limits on government intrusion now seems to be solely in his hands.

natasha333 on March 28, 2012 at 11:08 AM

I’m not a fan of Scalia’s judicial philosophy and ideological pandering – but there’s no denying his intellect. Except when it comes to issues relating to sexual matters, he’s always laser sharp in his questioning.
So while not surprised he’d already made up his mind on the mandate, I was disappointed only in his reliance on the sort of lame ‘analogous’ false arguments made previously and repeated ad infinitude from the peanut gallery
Broccoli?
He may be an originalist, but he ain’t original.

And bizarrely, Verrilli seemed wholly unprepared for that line.

verbaluce on March 28, 2012 at 11:21 AM

If the SC majority strikes down Obamacare as unconstitutional, I hope Justice Thomas is appointed to write the majority opinion. He just sits through these hearings like a sphinx, which the Left too long misinterpreted as inarticulate doltishness, when all along he was quietly contemplating the restoration of the 10th Amendment. After District of Columbia vs. Heller, this is the perfect case for Justice Thomas to conclude that project.

de rigueur on March 28, 2012 at 11:42 AM

If the SC majority strikes down Obamacare as unconstitutional, I hope Justice Thomas is appointed to write the majority opinion. He just sits through these hearings like a sphinx, which the Left too long misinterpreted as inarticulate doltishness, when all along he was quietly contemplating the restoration of the 10th Amendment. After District of Columbia vs. Heller, this is the perfect case for Justice Thomas to conclude that project.

de rigueur on March 28, 2012 at 11:42 AM

Yes. This. It would be a wonderful start to a long overdue constitutional renaissance.

gryphon202 on March 28, 2012 at 12:27 PM

Thank goodness there are folks who understand the difference between healthcare and health insurance.

Then again, Scalia voted with the majority on Gonzales.

Pablo Snooze on March 28, 2012 at 1:44 PM

The original interpretation of the commerce clause until then was that it was intended to allow the federal gov’t to keep states from engaging in protectionism against each other and passing laws treating products / businesses from a different state different than products / businesses within the state.

Monkeytoe on March 28, 2012 at 8:58 AM

Thank you, Monkeytoe. I’m glad someone else is aware of this. I rarely find anyone who seems to demonstrate an understanding of the original intent of the commerce clause, which is primarily to prevent the states from engaging in in trade wars, tariffing, and anti-trade practices amongst themselves.

gravityman on March 28, 2012 at 2:35 PM

One of the precedents that ObamaCare has going for it is Wickard v. Filmore, a case in which a farmer who was growing wheat exclusively for his family and his livestock was held to be answerable to the Federal government, despite not participating in any actual commerce.

Henry Bowman on March 28, 2012 at 8:40 AM

I contend that Wickard is not as applicable as most would believe. It was a massive expansion of the Commerce Clause, but there is a very distinct difference between HHS vs Florida and Wickard vs Filburn, and that difference to me makes any attempt by the government to point to it as precedent invalid.

Wickard was engaging in a “activity”. He was growing wheat. Whether we agree or disagree with the court’s argument that he impacted interstate commerce, there can be no denying that he was engaging in an activity as opposed to willfully exercising inactivity. I think that is a exceedingly key distinction. Wickard was making the decision to participate in the growing of wheat, even if it was for himself (although I disagree with the decision that he was inadvertently participating in commerce). In short, Wickard was not being forced to engage in an activity, he chose to engage in the activity prior to being regulated. In this case, people are not actively engaging in an activity, but instead are being told to engage in the activity in order to be regulated. If Wickard had chosen not to grow wheat, and the government had come along and said he must grow wheat then I could see the equivalence.

gravityman on March 28, 2012 at 2:54 PM

If Wickard had chosen not to grow wheat, and the government had come along and said he must grow wheat then I could see the equivalence.

gravityman on March 28, 2012 at 2:54 PM

The fakery of Wickard is illuminated by this question:

What if Wickard was a tomato farmer? He wouldn’t be participating in wheat commerce, just exactly as he wasn’t participating in wheat commerce.

In other words, if you aren’t purchasing wheat, you are in violation of the Commerce clause this very moment.

Back to the tomatoes. Are people who have gardens in their backyard with tomato plants not participating in tomato commerce?

If you use a woodstove to heat your house, are you not participating in natural gas commerce?

And so on and so forth.

BobMbx on March 28, 2012 at 5:42 PM

efficiency = death panels

ladyingray on March 28, 2012 at 5:46 PM

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