Craziness prevails in Obamacare hearings - Salon

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http://www.salon.com/2012/03/27/craziness_prevails_in_obamacare_hearings/
Healthcare reform may be in peril after the Supreme Court gave silly arguments serious consideration


TUESDAY, MAR 27, 2012 2:47 PM PDT

BY ANDREW KOPPELMAN



The long-awaited oral argument on the merits in the challenge to the Affordable Care Act makes depressing reading, because so many judges seem to be ready to buy such silly arguments – arguments whose silliness was pointed out on the spot, sometimes even conceded by the challengers, but which nonetheless seemed to sometimes move Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia and Samuel Alito. (Justice Thomas, who characteristically didn’t say a word, is a sure vote to strike down the law.)

A lot of arguments have been made against the mandate, but we can roughly group them into two broad categories, which I’ll call 1) No Limits and 2) I Am a Rock. No Limits claims that if the mandate is permitted, there will be no limitations on federal power. I Am a Rock claims that people have a constitutional right to some safe harbor where they and (more important) their money are immune from all federal regulation.

The No Limits argument was succinctly stated by Justice Kennedy: “Can you create commerce in order to regulate it?” He worried that “this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce.” Roberts worried that government could force you to buy a cellphone; Alito, burial services; Scalia, broccoli.

But there already is a pretty big limit on the commerce power: United States v. Lopez, a well-known 1995 decision that invalidated a federal ban on handgun possession near schools. Justice Breyer nicely summarized its holding: “Congress cannot get into local affairs, particularly where they are noncommercial.” With that decision on the books, the No Limits argument is like saying that unless you buy my rickshaw, you will have no way to move from place to place. You have legs. Everyone can see them. Lopez placed limits on federal power. Everyone can see them. The claim that there will now be no limits is weird. It denies the existence of what is there in plain sight.

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