In passing the law two years ago, Democrats entertained little doubt that it was constitutional. The White House held a conference call to tell reporters that any legal challenge, as one Obama aide put it, “will eventually fail and shouldn’t be given too much credence in the press.”
Congress held no hearing on the plan’s constitutionality until nearly a year after it was signed into law. Rep. Nancy Pelosi, then the House speaker, scoffed when a reporter asked what part of the Constitution empowered Congress to force Americans to buy health insurance. “Are you serious?” she asked. “Are you serious?”
Opponents of the health plan were indeed serious, and so was the Supreme Court, which devoted more time to hearing the case than to any other in decades. A White House that had assumed any challenge would fail now fears that a centerpiece of Obama’s presidency may be partly or completely overturned on a theory that it gave little credence. The miscalculation left the administration on the defensive as its legal strategy evolved during the past two years...
...The first lawsuits were filed the day Obama signed the plan in March 2010. By the end of January 2011, judges in Florida and Virginia had ruled it unconstitutional. Only then did the Senate and the House hold hearings on its constitutionality, and the administration grew worried.
...A three-judge panel for the 11th Circuit in Atlanta, however, declared the insurance mandate unconstitutional. The administration chose not to ask the full court to rehear the case and appealed directly to the Supreme Court. Donald B. Verrilli Jr., who became solicitor general last June, rehearsed in multiple moot court sessions. But on the critical day of Supreme Court arguments on March 27, he momentarily choked on a drink of water and was hammered by justices skeptical of his argument. He gave a rambling answer about the limits of congressional power and had a hard time controlling the discussion as he was peppered with questions. Commentators gave him harsh reviews, but Obama called him to show support.
Either way, administration lawyers were more disturbed by what the justices had said. They were disheartened that Justice Antonin Scalia, who had joined a ruling upholding a previous commerce clause case, seemed so hostile. And Kathryn Ruemmler, the White House counsel, was said to be disturbed that Justice Anthony M. Kennedy, often the swing vote, suggested the government had a “heavy burden.”
But current and former administration lawyers hold out hope.
Where are the limits on the federal leviathan? If the federal government can demand that you enter into private contracts, what are the contours of this power? Because all human beings require food, shelter and clothing, does the federal government have the power to demand you purchase certain kinds of food, shelter and clothing?
If not, why not?
Because once the Constitution's limits on government are breached, I have yet to find the liberal who can explain where these new federal powers end. You and I -- the rational segment of Americans -- know our history. We know that once government has the power to tell you what kind of health care you must purchase, what kind of light bulbs you can buy and how much water flow is permitted through your shower heads, you have a government that is completely out of control.
You have a government on the road to tyranny.
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