Pete Spiliakos provides a nice review of Solicitor General Verrilli’s attempts to defend Obamacare in front of the Supreme Court this past week (“What Part of ‘Because I Said So’ Don’t You Understand?”). Most tv and print pundits say the government’s lawyers (Verrilli) did a poor job defending the law in front of the court and many blame Verrilli personally. In the final analysis however
…Solicitor General Verrilli did his pitiful tap dance about how the health care market is “different” and how the federal government has the power to compel you to buy health insurance but not a cell phone or burial insurance. And the result was that the more conservative Justices pounded him into the ground. The problem wasn’t Verrilli. It was the quality of his arguments.
From the day it passed I assumed Obamacare would be struck down by the courts as an unlawful abuse of Congressional power. Article I of the Constitution enumerates the specific powers of Congress; the power to force purchases on people is not among that enumeration.
Although Article I grants Congress the power to regulate interstate commerce, that power does not extend to forcing people to participate in commerce — so that they can then in turn be regulated! Here I’m reminded of the climactic scene in Clint Eastwood’s “Unforgiven.” Eastwood’s character points a rifle at a frontier journalist who sputters “certainly you wouldn’t shoot an unarmed man!” Eastwood then points to a gun lying on the floor and growls “See that rifle there? Pick it up!” That’s the Pelosi-Reid Congress at work — Join the national health market so we can regulate you! Or else!
A proper judicial review should thwart such an abuse of power. In doing so the Court would exercise its proper role of oversight first used in Marbury vs Madison over 200 years ago. That’s judicial review in its proper place. In case you’re wondering, should the Court strike down Obamacare it could not be justly accused of judicial activism — the judicial exercise of power not found in the Constitution. Remember forced bussing of school children back in the 1970s? That was judicial activism. Obamacare is simply an unlawful abuse of power which needs to be vacated.
For more on the Obamacare arguments see also “I Wonder Why Solicitor General Verrilli…”
For a more practical (rather than legal) explanation of why Obamacare (or any other centralized planning solution to health care) is a foolish idea please see Walter Russell Mead “The Health Care Disaster and the Miseries of Blue.”
Finally, I think it’s important to remember why Obamacare is key to November’s election. The health care law is President Obama’s signature legislation. It’s also the perfect archetype of all he stands for: central planning, centralized government control of markets and industries, all supposedly for the benefit of the people yet in actuality at the people’s great expense and for the benefit of those who fund and support the party in power. In an age of rapid technological advancement such policies are the exact opposite of the direction that America should take for the protection of individual freedom and the protection of individuals against the tools available to those who would seek despotic power.
All four remaining Republican candidates are running against Obama by running against Obamacare and the implications of Obamacare for government power. Although Mitt Romney is the frontrunner he has failed to close the deal largely because of his association with “Romneycare” in Massachusetts. Rick Santorum has said that the danger posed by the implications of Obamacare compelled him to enter the Presidential race (see “Rick Santorum — The Servant“). His stump speeches focus on freedom and resonate with the crowd (See Daniel Henninger’s “Santorum and Freedom“). Gingrich and Paul are also strong opponents of the law.
I’m not in the prediction game; I’m lousy at picking football games against the spread and I won’t try to handicap the Supreme Court vote. I just know how they should vote.