Vapor Of Record

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.

Related content from Sphere


  1. Two points I have picked up from various writers ‘over there’.

    First, if the bill is thrown out it may actually help Obama be re-elected. In the words of one writer “it gets the albatross off his neck” and leaves him free to claim that he did his best to give every American free medical care for life.

    Second, if the Supreme Court does throw it out there will be outrage and a huge backlash in Dem circles whipped up by the MSM, and moves will quickly be afoot to curb the powers of the Court. If that happens, America is well and truly lost!

    Posted March 29, 2012 at 3:31 am | Permalink
  2. “Second, … If that happens …”

    That’s a very big “if”. Who, pray tell, will “curb the powers of the Court”? God? Obama? Eric Holder?

    Nothing short of a Constitutional amendment can accomplish that. And, not counting the Bill of Rights (the first 10 Amendments that were co-ratified with the Constitution itself) the Constitution has been amended 17 times. Hence, we have averaged 0.76 Amendments per decade of U.S. history.

    Not so easy …

    Posted March 29, 2012 at 12:21 pm | Permalink
  3. As a matter of interest, Henry, when was the last one?

    Posted March 29, 2012 at 3:22 pm | Permalink
  4. 1992

    Posted March 29, 2012 at 3:32 pm | Permalink
  5. “The Twenty-seventh Amendment (Amendment XXVII) prohibits any law that increases or decreases the salary of members of the Congress from taking effect until the start of the next set of terms of office for Representatives. It is the most recent amendment to the United States Constitution, having been ratified in 1992, despite its initial submission 203 years prior.” [emphasis added]

    Posted March 29, 2012 at 3:38 pm | Permalink