Motus Mentis

The New York Times opines today about yesterday’s Obamacare arguments in the Supreme Court. Predictably, the editors seem to believe that the effects of the Affordable Care Act are of sufficient national importance to trump its Constitutional audacity, and so they are willing to brush aside yesterday’s sharp questioning by conservative Justices as mere tendentiousness:

The insurance mandate is nothing like requiring people to buy broccoli ”” a comparison Justice Antonin Scalia suggested in his exasperated questioning of Solicitor General Donald Verrilli Jr. Congress has no interest in requiring broccoli purchases because the failure to buy broccoli does not push that cost onto others in the system.

Really? The point here is whether the individual mandate is as unique as the government would like the Court to think it is. But given that poor diets lead to poor health, and so to higher consumption of health-care services, why couldn’t the government, emboldened by a favorable ruling on the individual mandate, next make the case that failure to consume one’s vegetables increases the health-care cost burden on everyone else?

The point, as Justice Kennedy noted, is that to allow Washington this expansion of coercive power changes the relationship between the individual citizen and the federal government so profoundly, and is so conducive to further intrusive infringement of federal authority on individual liberty, that there is both an extraordinary burden of justification and a need for a clearly articulated limiting principle. It seems that the Solicitor General fell well short of both in yesterday’s arguments.

The argument by the Times seems to be: we want this, we need this, so the Court should just get out of the way. The editorial begins:

In ruling on the constitutionality of requiring most Americans to obtain health insurance, the Supreme Court faces a central test: whether it will recognize limits on its own authority to overturn well-founded acts of Congress.

Well, that’s one way of looking at it. (Gotta love that question-begging “well-founded”, too.)

Others might say that the “test” the Court faces is whether it will in fact do what it was created to do: recognize limits on the enumerated powers of the executive and legislative branches to usurp the rights of the States and of individual citizens.

We’ll have to wait and see; this could still go either way. But we can be a little more hopeful, I think, after yesterday’s session.