When she heard about the ruling in Kelo v. New London, the Supreme Court’s infamous and controversial 2005 eminent domain case, former House Speaker Nancy Pelosi exclaimed, “This is almost as if God has spoken.” Four years later, when asked about the possibility that Obamacare would be found unconstitutional, she acted as if the devil had spoken: “Are you serious?” This is the same tone liberals have been taking ever since the first lawsuits were filed challenging President Obama’s national health care law. They hope to delegitimize an unfavorable ruling in advance.
Today, the Supreme Court begins hearing six hours of oral arguments on the matter — the most it has granted any case since the 1960s. And liberal commentators are still heaping ridicule on opponents of the law, treating them as if they were birther amateurs cooking up legal theories about Hawaiian vital records law. Sahil Kapur of Talking Points Memo informs us that if the justices respect precedent, “they’ll uphold the law. An ideology-driven move to strike down the mandate, a central component of the law, would mark a rare, swift departure from precedent.” Both Linda Greenhouse of the New York Times and UCLA law professor Adam Winkler mock the law’s challengers for repeatedly pointing out that Obamacare’s individual mandate is “unprecedented” — in Winkler’s words, they “emphasize the novelty argument because they have little else on which to rely.”
But there’s a more obvious reason people call Obamacare unprecedented — namely, because it is unprecedented. Then-acting Solicitor General Neal Kumar Katyal was forced to concede in 6th Circuit oral arguments that the Supreme Court had “never been confronted directly” with a case in which Congress used the Commerce Clause of the U.S. Constitution as a tool to compel commercial activity. The closest fit he could think of was the 1964 Heart of Atlanta Motel case, in which the Court ruled that Congress could use its Commerce Clause power to bar discrimination by private businesses. But again, in that case, the business owners were already engaging in commerce.
Amid all this wishful thinking about the supposedly “settled science” of Obamacare’s constitutionality, you will not see the mockers cite the name of Judge Frank Hull. She is the Clinton appointee who co-authored a scathing decision by the 11th Circuit Court that rejected the government’s critical argument in defense of the individual mandate as “nowhere to be found in Supreme Court precedent…ad hoc, devoid of constitutional substance, incapable of judicial administration — and, consequently, illusory.” Later on, the court added: “We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers.” It’s hard to believe that, at this point, any serious person following the issue closely would dismiss the substance of the legal challenges to the health care law. It only makes sense as a pre-emptive attack by the law’s forlorn defenders, who hope to undermine an adverse decision in the court of public opinion.
