Right Wing Nut House

I wrote about that federal appeals court hearing in Atlanta yesterday about Obamacare for FrontPage.com.

A sample:

The 11th circuit is considered to be one of the most conservative appeals courts in the nation. Greg Bluestein writing for RealClearPolitics.com says of the judges, “None of the three are considered either stalwart conservatives or unfailing liberals.” Chief Judge Joel Dubina was appointed by George W. Bush, while Judges Stanley Marcus and Frank Hull were tapped by Bill Clinton, although Hull was originally appointed by Ronald Reagan to the District Court in Florida.

Court watchers say that both sides had reason for hope. During three hours of questions, the judges sharply questioned acting U.S. Solicitor General Neal K. Katyal about the power of Congress to compel individuals to purchase any product, much less health insurance. “If we uphold this, are there any limits [on government power]?” asked Judge Dubina. Judge Marcus said he couldn’t find a case in the law where the courts upheld “telling a private person they are compelled to purchase a product in the open market…. Is there anything that suggests Congress can do this?”

While the judges appeared skeptical about whether the government could force individuals to purchase a private product, they also didn’t seem to think much of the plaintiff’s argument that what Congress was really doing was regulating “economic inactivity.” Walter Delligner, acting solicitor general under Bill Clinton, detected some doubt in the judge’s questions of former Bush administration Solicitor General Paul Clement who is representing the plaintiffs.”The inactivity point is losing salience,” Dellinger said.

But it is the constitutionality of the mandate that most concerns the government, because without it, Obamacare collapses. There would be no way to fund the program. As Clement observed, “If you take out the hub, the spokes will fall.”

The Washington Examiner’s Randy Barnett points out the mandate is clearly the nub of the matter — both legally and psychologically. If the mandate passes muster with the courts,”[t]he next time Congress decides to impose an economic mandate, the courts will defer to Congress’ own assessment of whether another economic mandate is ‘essential.’”

In researching this piece yesterday, I came across about a half dozen articles from legal experts who think that even if the plaintiffs prevail in appeals court that SCOTUS will almost certainly uphold its constitutionality. Megan McCardle thinks there is barely a 25% chance the Supremes will give the ax to Obamacare.

Tradition more than ideology will determine the Supreme Court decision. It is extremely rare that the high court challenges congress in their interpretation of the Commerce Clause or the Necessary and Proper Clause. Congress has said by passing Obamacare that they have a right to regulate the insurance industry any way they choose — including the individual mandate — and buttress their argument by pointing to  Article I and the Necessary and Proper Clause as giving them the power to come up with the best means to achieve their legislative goal.

This will be good enough for the 4 liberals and almost certainly Anthony Kennedy. At least that’s how court watchers have handicapped the outcome. By the time the case reaches them, Obamacare will be so entrenched with billions in funding spent, boards and commissions formed, insurance exchanges created, and more, that striking it down in total will be impossible. Even in the unlikely event the mandate is declared unconstitutional, the rest of the law will remain.

Make no mistake. A Supreme Court imprimatur on the mandate will mean that for all practical purposes, there will be no limits on what can be construed as “economic activity” under the Commerce Clause. Even “inactivity” will be judged as falling under that rubric.

And don’t think for a minute that there aren’t people who will seek to use this near unlimited power to attempt to alter our behavior. Government will be able to compel us to purchase anything they deem “necessary and proper” to the implementation of health care laws and probably other schemes as well.

We will rue the day.