The argument that was before the Supreme Court last week comes down to this.
If Congress can force the individual into a private contract by authority of the commerce clause, what can it not force the individual to do? Without a limiting principle, the central premise of our constitutional system — a government of enumerated powers — evaporates. What, then, is the limiting principle?
Liberals were quick to blame the administration’s bumbling solicitor general, Donald Verrilli, for blowing the answer. But Clarence Darrow couldn’t have given it. There is none.
Justice Stephen Breyer tried to rescue the hapless Verrilli by suggesting that by virtue of being born, one enters into the “market for health care.” To which plaintiffs’ lawyer Michael Carvin devastatingly replied: If birth means entering the market, Congress is omnipotent, authorized by the commerce clause to regulate “every human activity from cradle to grave.”
When June finally rolls around we get to find out which of the justices is in favor of elevating Congress to omnipotence. Anyone care to guess who they are?
As I sat in the courtroom, and later as I reviewed the transcripts, many justices sounded as if they were laying out their positions. All four liberals mostly used their questions to try to suggest answers or help [Solicitor General] Verrilli...
There's hardly a doubt in anybody's mind about how Justices Breyer, Ginsburg, Kagan, Sotomayor will vote. But what about the others, the unpredictable ones who now seem likely to oppose such unbridled power in Congress? According to lefty pundits, they are the partisans justices. Funny that it's the "partisan" side that's considered least predictable.