Missing From the Court’s Debate: The Constitution

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http://www.bloomberg.com/news/2012-03-29/missing-from-the-court-s-debate-the-constitution.html

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Powerful Demigods

In short, trying to guess the outcome from the oral arguments is a fool’s game. But such silliness is fully in keeping with our attitude toward the justices -- who, reviled though they frequently are by activists of one stripe or another, continue their firm grip on our collective imagination. For all our cynicism and sophistication, we still seem to consider the court, as Anthony Lewis wrote almost half a century ago, “an extraordinarily powerful demigod sitting on a remote throne and letting loose constitutional thunderbolts whenever it sees a wrong crying for correction.”

Small wonder, then, that the political debate over the Affordable Care Act and its individual mandate has landed there. The oral argument transcripts are illuminating -- not on any great questions of constitutional law, but rather on questions of policy.

The argument was pressed with considerable distinction by Solicitor General Donald Verrilli, on behalf of the government, and former Solicitor General Paul Clement, on behalf of the plaintiffs. On the day that mattered -- Tuesday’s battle over the individual mandate -- both men scored excellent points. But nearly all of the points related to wisdom, not constitutionality.

Under sharp questioning from Justices Antonin Scalia and Samuel Alito, the weakest point of the mandate was laid bare. The 26 states arguing against the law are at least half right. The scope of the power being claimed is scary. The claim on behalf of the mandate is that individuals who do not buy health insurance will nevertheless consume health-care services, possibly very expensive ones, and therefore are affecting commerce -- the insurance industry for others -- even if they choose not to buy. The chain of reasoning is perfectly logical.

[1StrongBlackMan]

1. Thank you for posting this OP ...

I love reading Stephen Carter's pieces ... clear-headed and very lawyerly, without being full of himself.

This is another fine read.