“Friday is the second anniversary of ObamaCare. It is past time to abolish the program, root and branch. The Supreme Court will soon have a crack at this; arguments about the program’s constitutionality open before it next week. But whatever the justices decide in what is certain to be a landmark decision, the case against ObamaCare extends far beyond questions about its constitutionality. President Obama’s program is an unfolding disaster for the American economy, a budget-busting entitlement, and a dramatic new federal intrusion into our lives.”

“If Obamacare is upheld, it fundamentally changes the nature of the American social contract. It means the effective end of a government of enumerated powers — i.e., finite, delineated powers beyond which the government may not go, beyond which lies the free realm of the people and their voluntary institutions. The new post-Obamacare dispensation is a central government of unlimited power from which citizen and civil society struggle to carve out and maintain spheres of autonomy…

“Rarely has one law so exemplified the worst of the Leviathan state — grotesque cost, questionable constitutionality and arbitrary bureaucratic coerciveness. Little wonder the president barely mentioned it in his latest State of the Union address. He wants to be reelected. He’d rather talk about other things.

“But there’s no escaping it now. Oral arguments begin Monday at 10 a.m.”

“[A] review of lower court rulings by conservative judges, subtle signals from individual justices, and interviews with professors and judges across the ideological spectrum suggest that presumption is wrong – and that the court will uphold the law…

“It’s almost like they’re confessing to some secret vice when they say they don’t think (the law) should be struck down,” said former U.S. Court of Appeals Judge Michael McConnell, a George W. Bush appointee who now teaches at Stanford Law School, referring to some fellow conservatives…

“Wilkinson, who was on George W. Bush’s short list for the Supreme Court, has not presided over any of the challenges to the healthcare law that have made their way through U.S. courts.

“But he suggested in a recent book on constitutional theory that the law was valid, subject to Congress’ power to regulate commerce in the states: ‘The idea that Congress is constitutionally disabled under the commerce power from regulating activity affecting one-sixth of the national economy strikes me as a heavy lift.’ Healthcare spending totals more than 17 percent of U.S. gross domestic product.”

“The countless unprecedented things that Congress has done over the centuries were not, for that reason, unconstitutional. Social Security, Medicare, the Employee Retirement Income Security Act (Erisa), and the Emergency Medical Treatment and Labor Act, the 1986 law passed to prevent hospitals from refusing to care for uninsured patients in acute distress, all come to mind. (From the perspective of today’s toxic politics, it’s a miracle that any of these laws actually got passed, but that’s a separate issue.) So there must be some problem with the Affordable Care Act other than ‘never before.’…

“The government argues that, to the contrary, the ‘uncompensated consumption of health care’ by those who are willfully or helplessly uninsured is itself an enormous economic activity. The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not.”

“On the contrary, under the administration’s logic about the interstate effects of the health insurance market, not purchasing broccoli would in fact affect the larger market for the vegetable. Just as most people will utilize some sort of medical care during their lifetimes, nearly everyone will move from place to place, and everyone will consume food of some kind. This necessitates decisions about what kind of food to eat, and how to get from one place to another. Choosing to walk, or use the bus, or buy a Toyota rather than, say, purchase a vehicle made by GM would certainly have some effect on the market for GM’s automobiles. Buying carrots or arugula rather than broccoli would similarly have an effect on the broccoli market…

“It is hard, then, to see what limits, if any, would exist on congressional power under the Commerce Clause should the mandate be upheld. This is not an entirely unusual conclusion. Harvard law professor Charles Fried, who believes the mandate is constitutional, told Congress last year that the same constitutional provisions that permit the mandate would also permit Congress to compel the purchase of broccoli or any other vegetable. ‘Force you to pay for something? I don’t see why not. It may not be a good idea, but I don’t see why it’s unconstitutional,’ he said. To accept this interpretation is to accept that there are no limits on the power granted to Congress on the Commerce Clause. That presents a problem for the mandate’s defenders because the Constitution is a limiting document. The Obama administration, however, has consistently failed to explain what limits would exist under the Commerce Clause if the mandate were upheld.”

“I’m speaking, of course, about Social Security and Medicare. Each program is a form of ‘social insurance’ and each serves the same basic function: To protect us from financial shocks that we cannot anticipate or avoid. With Social Security, the shock is reaching retirement without enough income. With Medicare, the shock is high medical bills during old age. During our working years, we pay into these programs by handing over portions of our incomes, in the form of payroll taxes. And we don’t have a choice about it, unless we want to start evading taxes.

“The Affordable Care Act is also a form of social insurance. It, too, seeks to protect us from problems that we cannot anticipate or avoid: Illness or accident before we turn 65. To get that protection, we must contribute towards its cost—by obtaining a qualified health plan on our own or, failing that, paying a fee to the government. The government then uses that fee to finance the provision of health care services for those who couldn’t pay for it on their own. The obligation is, if anything, less onerous than the one for Medicare and Social Security. By law, the government cannot impose criminal penalties on people who fail to meet the mandate. The worst the government can do is withhold future tax refunds.

“So why is the Affordable Care Act such an unconscionable infringement of liberty, while those two other, more revered programs are not?”

“Hitherto, most attention has been given to whether Congress, under its constitutional power to regulate interstate commerce, may coerce individuals into engaging in commerce by buying health insurance. Now the Institute for Justice (IJ), a libertarian public interest law firm, has focused on this fact: The individual mandate is incompatible with centuries of contract law. This is so because a compulsory contract is an oxymoron…

“The IJ argues: The 10th Amendment forbids Congress from exercising its commerce power to compel states to enter into contractual relations by effectively forcing states to ‘buy’ radioactive waste. Hence ‘the power to regulate commerce does not include the power to compel a party to take title to goods or services against its will.’ And if it is beyond Congress’s power to commandeer the states by compelling them to enter into contracts, it must likewise be beyond Congress’s power to commandeer individuals by requiring them to purchase insurance. Again, the 10th Amendment declares that any powers not given to the federal government are reserved to the states or to the people.

“[C]entral as the alleged abhorrence of legislating from the bench has been to the conservative movement for 30 years, it’s worth reflecting on the absurdity of the current situation. On what will probably be the most important and consequential high-court ruling in 13 years, since Bush v. Gore, conservatives will be cheering for their justices to violate what they tell the rest of us is their most fundamental and inviolate jurisprudential principle…

“It’s just finding fancy justifications for a set of desired outcomes that are driven by ideology and not by any particular consistent legal view of the world. And people know that. Therefore, if the court does overturn the ACA, if this group of five conservatives legislates from the bench and violates the central conservative legal tenet of recent American history, enough Americans will smell a rat that the decision will invite a backlash. Certainly, liberals who were never wild about it (and there are many) would find themselves suddenly angry that it was negated by these five, not to mention furious at the sight of celebrating conservatives. And to independents who weren’t fans of the bill, Barack Obama can say, ‘OK, it’s gone, but if your 24-year-old daughter gets thrown off your plan, or your spouse gets denied coverage because of a preexisting condition, don’t blame me. I bestowed those rights. Some other people took them away.'”

“‘Up for grabs right now is whether the whole health-care plan could be declared unconstitutional. I don’t think that’s going to happen. But that’s a potential that could happen,’ attorney David Boies said…

“‘It could really define the powers of the federal government going forward in a whole variety of areas,’ said Boies.”