High Court Hopes
Now that the oral arguments are over: What should SCOTUS do?


As the Court began hearing oral arguments, I felt that it should overturn the individual mandate, invalidate the Medicaid expansion, and toss the entire Affordable Care Act out. My sentiments were reflected in three amicus briefs filed with the Supreme Court, and were based on the porous economic foundations of the government’s arguments.

Unfortunately, the legal community seemed to see it differently, as reflected in our poll of former Court clerks and lawyers who had argued in front of the Court. From that perspective, the probability of my preferred outcome was exceedingly low — under 1 percent. (Asking experts who actually know something about the topic can be sooooo disappointing.)

Something had to give.

Having watched the Court in action the past two days, I now think that the individual-mandate issue is a toss-up — and I still think that on the merits it should be overturned. As for severability, the Court appears to be struggling. It does not want to toss the entire Act, but can’t find a principled way to draw a line between provisions that should stand and those that should be tossed along with the mandate.

My revised position is admittedly influenced by the politics: overturn the mandate and sever it, and only it, from the act. The former is right on the substance and the politics; the latter is the most conservative action the Court could take, and makes the future of the act Congress’s problem.

That’s fine with me. The ACA without the mandate is unworkable, and both Democrats and Republicans will agree it should not be implemented. That allows for simply deferring implementation as the bipartisan action of 2012, while the real future of health-care reform hangs in the electoral balance. That is as it should be.

— Douglas Holtz-Eakin is president of the American Action Forum.


Phil Kerpen
When President Obama was a senior lecturer at the University of Chicago Law School, he taught the Constitution from a decidedly unconventional perspective, one characterized not by admiration for the governmental structure designed by James Madison and his illustrious colleagues, but by contempt for it.

As Obama himself explained it in a 2001 radio interview: “The Supreme Court never ventured into the issues of redistribution of wealth and more basic issues of political and economic justice in the society and to that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution.”

This week the Obama administration asked the Roberts Court to do what Obama faulted the Warren Court for not doing. He wants them to break free of the Constitution’s “essential constraints” on federal power.

If the Roberts Court sides with Obama, the Commerce Clause would be transformed into a de facto plenary power, allowing the federal government to do nearly anything. That was clear this week when the government failed to articulate any principle limiting federal power under its understanding of the Commerce Clause.

This is despite the clear structure of the document and the inclusion of the Ninth and Tenth Amendments to prevent this type of inversion. If this were permitted, Obama’s dream of breaking free from the Constitution would become a reality.

The rest of us must focus on electing a Congress and a president who respect the Constitution and see its limits on federal power not as constraints to be broken but as protections to be cherished.

— Phil Kerpen is the author of Democracy Denied: How Obama Is Ignoring You and Bypassing Congress to Radically Transform America — and How to Stop Him.