He’s just 45 years old, a former Solicitor General under Bush, and gave the argument of his life yesterday on the most momentous day for small government before the Supreme Court in decades. At this point, I’d say he’s a mortal lock to be nominated by a future Republican president. So watch the clip. In a few years, this guy will have a lot of influence over your civil rights and obligations.
I keep thinking about Kennedy’s point yesterday that the mandate “changes the relationship between the individual and the government in a very fundamental way.” That’s the core of what the Constitution does — it defines the relationship between individual citizens (and the states) and the federal government. He was basically accusing the White House of trying to change the constitutional order. The logical next step in that chain of thought is “and you can’t do that without passing an amendment,” but instead he turned around and asked Verrilli whether there isn’t a “heavy burden of justification” for any law that seeks to do so. The suggestion seems to be that you can tweak the basics of Article I with a simple statute provided that you have a really good reason. Note to Kennedy: That logic is an even more fundamental change to the constitutional order than the mandate is.
The way they’re purporting to meet the “heavy burden of justification” is with the “health care is unique” argument. Noah Feldman makes it as well as anyone could, but he’s awfully heavy on the “necessary” and awfully light on the “proper.” The left’s point about “uniqueness” seems to me less a good-faith argument for why this law is kosher under relevant Commerce Clause precedent and more window dressing for the idea that because the law purports to solve a vexing long-term problem of life and death, the sheer necessity of it should diminish the requirement that it be proper. What they’re asking for, in other words, even though they can’t phrase it this way, is a waiver from the Commerce Clause because this boondoggle is that important. And Kennedy, per his “heavy burden of justification” reasoning, just might give it to them.
Update: As a counterpoint to Clement, go see what poor sap Donald Verrilli was reduced to arguing by the end of business today. Someone buy that guy a beer.