I’ve just left the U.S. Supreme Court building after hearing one of the most amazing oral arguments in history. I’ll have details shortly, but suffice to say that Justices Roberts, Scalia, Alito, and Kennedy expressed string skepticism toward the Individual Mandate. Justice Kennedy at one point said it “changes the relationship of the federal government to the individual in a very fundamental way” because it compels behavior rather than simply regulating it. Although the Obama Administration’s lawyers argued that what it called the “health care market” is different than any other kind of market–so that upholding this mandate would not allow Congress to impose other mandates–Kennedy regarded that argument with skepticism, too: “The government argues that the market for health care is unique,” he said, “and in the next case, they’ll say that market is unique.”
Interestingly, Justice Scalia’s concurring opinion in Raich was hardly mentioned, and not at all by the Solicitor General! On the contrary, Scalia, who asked the first question, was unremittingly hostile to the government’s position, pointing out immediately that the Mandate does not regulate commerce, but rather something that is not commerce–and that something cannot be “proper” under the necessary and proper clause if it so drastically undermines the principle of limited powers: if the government can do this, what can’t it do?
One question (from Chief Justice Roberts, if I recall correctly) was whether the government can force people to buy cell phones, so as to protect themselves in emergencies. Solicitor General Verrilli answered “no.” But about halfway through the argument, Verrilli pointed out that forcing one group of people to subsidize others is common–that telephones were long subject to regulations that did just that. Scalia immediately interjected “But you don’t force people to buy phones.” Amazingly, Verrilli answered that in today’s modern society, everyone needs to use phones!–which of course implies that, in fact, inset the Administration’s position, the government can force people to buy phones. More amazingly, later on, Justice Breyer explicitly states that in his view, Congress can force people to buy cell phones, because in his view, it can “create commerce” as well as regulating it.
More later, but suffice for now to say that today’s hearing was one of the most fascinating and powerful in the history of the Supreme Court. The justices asked probing questions, and made clear that they see how serious this case is. A majority of the justices seem to understand that the Individual Mandate represents a fundamental change in our constitutional government and an abandonment of our basic principles of limited federal power.