This week the Supreme Court took up the recent federal health care reforms in oral argument. The questions the justices ask during oral argument do not necessarily indicate how they will rule. It is also not a very good idea to try and predict how the justices will rule on any given issue. Still it is at least likely though not certain that there is a 5-4 majority to strike down at least the individual mandate as exceeding congress' commerce clause powers.
The idea is that congress has enumerated powers under the constitution. The very concept of enumerated powers is meant as a limitation on federal power. It means that the federal government has certain powers, but no powers beyond those. An individual mandate is something that a state could adopt assuming that its own constitution does not prevent that. However, it is probably not something that the federal government can do. At some point there has to be some limitation on congress' power regardless of how far the Supreme Court has pushed the commerce clause since the new deal era. Similarly, the necessary and proper clause cannot justify plenary federal power. It too must have a limit at some point. Of course, the federal government could simply link something such as federal highway funds to a health insurance mandate by requiring that states enact the mandate as a condition for receiving federal money. The federal government required states to set their drinking age at 21 as a condition for receiving highway funds at one point.
The oral argument audio can be found at the links below:
March 26: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Monday
March 27: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Tuesday
March 28: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-400
s/ Kurt Koehler
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