Wall Street Journal on March 27, 2012, reported on the two hours of Supreme Court oral arguments on ObamaCare’s individual mandate and concluded it was rough-going for the government and its assertions of unlimited federal power. Excerpts below:

Solicitor General Donald Verrilli faced aggressive questioning from Justices Anthony Kennedy and Antonin Scalia and Chief Justice John Roberts, the trio pegged as possible swing votes in favor of the mandate to buy insurance or pay a penalty. But they failed to elicit from Mr. Verrilli some limiting principle under the Commerce Clause that distinguishes a health plan mandate from any other purchase mandate that would be unconstitutional. The exchanges recalled the famous moment in Citizens United when the government claimed it could ban books to regulate political speech.

“Can you create commerce in order to regulate it?” inquired Justice Kennedy, in the first question from the bench. To ask another way, does the Administration think it has plenary police powers to coerce individuals into economic transactions they would otherwise avoid?

Justice Scalia bowed at this reality when he asked if having blue eyes would be a meaningful principle limiting the mandate. “That would indeed distinguish it from other situations,” he said, but it would also be irrelevant because it would still be “going beyond what the system of enumerated powers allows the government to do.”

The core features of the American system were also stressed by Justice Kennedy. “The government is saying that the federal government has a duty to tell the individual citizen that it must act,” he said, “and that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in the very fundamental way.”

The Court has always balanced federal and state power by distinguishing between pressure and coercion. ObamaCare crosses that line. The conditions of new Medicaid conscript the states into involuntary servitude to the federal government’s policy goals, in this case national health care. They would no longer be independent and autonomous units within the federalist system but agents of Washington.



  1. jonolan Says:

    One – A more accurate title would be “A BAD DAY IN COURT FOR THE DEMOCRAT US GOVERNMENT” since the current government, headed by Democrats, holds democratic principles in disdain.

    Two – The primary distinction isn’t between pressure and coercion; it’s between restriction and compulsion. traditional interactions between the people and the federal government have centered on limitation of actions. ObamaCare seeks to compel actions to be taken by the people.

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