On Monday we previewed this week’s Supreme Court oral arguments writing:
If you want to know how the Court will decide the case come this summer, pay special attention to how the Obama Justice Department tries to explain what the limits of Congressional power are. This issue has been Obama’s Achilles heel throughout the process of getting to the Supreme Court. Obamacare’s defenders simply have not been able to answer the question: “If Congress can force people to buy health insurance, then what can’t they force people to do?”
Or, as the attorney for Obamacare’s challengers, Paul Clement, put it in his opening of his brief: “The individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power does not exist.”
On at least three separate occasions, Obamacare’s Supreme Court Defender Solicitor General Don Verrilli was asked directly by three different justices (Kennedy, Scalia, and Alito) to explain why upholding Obamacare’s individual mandate would not create an unbounded Commerce Clause power. And he failed to provide an adequate answer every time.
When Kennedy asked him point blank, “Well, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?” Verrilli tried to say the mandate was different because it did not force the purchase of a commodity, just how that commodity should be financed. Kennedy didn’t buy it: “But why not? If Congress — if Congress says that the interstate commerce is affected, isn’t, according to your view, that the end of the analysis.”
And later Kennedy again signaled that he rejected the government’s claim that the uniqueness of health care market provided a workable limit to Commerce Clause power. He told National Federation of Independent Businesses Attorney Mike Carvin: “The government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique.” Exactly. All markets are unique. Simply stating that health care is different in no way limits government power.
We will not know till June how Kennedy will vote, but yesterday marked the day that the individual mandates’ demise became more likely than not.
Gingrich: Newt Gingrich laid off a third of his campaign staff and has greatly reduced his campaign schedule. He insists he will stay in the race till the national convention in Tampa.
Ohio: According to Rasmussen Reports, Republican Josh Mandel is now running neck-and-neck, 43 percent to 43 percent, with Democratic incumbent Sherrod Brown in Ohio’s U.S. Senate race.
Around the Bigs
The Wall Street Journal, Group Backs Simpson-Bowles Plan: Reps. Steve LaTourette, R-Ohio and Jim Cooper, D-Tenn., are advancing a deficit reduction plan that closely resembles the outline produced by Republican former Sen. Alan Simpson’s and Democrat Erskine Bowles’ deficit reduction commission.
The New York Times, Florida’s New Election Law Blunts Voter Drives: Florida, which is expected to be a vital swing state once again in this year’s presidential election, is enrolling fewer new voters than it did four years ago as prominent civic organizations have suspended registration drives because of a new elections law — which requires groups that register voters to turn in completed forms within 48 hours or risk fines.
The New York Times, Final Approval by House Sends Jobs Bill to President for Signature: By a 380-to-41 margin, the House overwhelmingly passed Majority Leader Eric Cantor’s JOBS Act, which makes it easier for new companies to raise capital by exempting them from onerous federal regulations.
At The Corner, Yuval Levin explains that the mandate is a solution to a problem Obamacare created.
RedState‘s Daniel Horowitz previews the Republican Study Committee budget.
The Heritage Foundation‘s Romina Boccia how the EPA’s new CO2 regulations effectively ban new coal power plants.
Mother Jones’ Adma Serwer laments Obamacare’s Supreme Court Disaster.
Talking Points Memo‘s Brian Beutler shares Clinton Solicitor General Walter Dellinger’s spin on why yesterday was not a total disaster for Obamacare.
Steve Benen notes that other than the mandate, Obamacare is mostly popular.