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Obamacare Questions and a Supreme Court Vacancy


The possibility of a Supreme Court nomination in the midst of a battle over the constitutionality of a momentous piece of legislation presents a terrific opportunity for a public debate over first principles.

As I mentioned earlier, during confirmation hearings no nominee will entertain questions from the Senate Judiciary Committee regarding the constitutionality of Obamacare. That doesn’t mean that the media shouldn’t pose questions to possible nominees now.

Most who perceive that they may be on the short list of possible nominees probably will do anything they can to avoid answering the questions. But that doesn’t mean that asking the questions would be an exercise in futility. Rather, it’s likely that the convergence of a Supreme Court vacancy with a constitutional challenge to one of the most controversial pieces of legislation in decades — indeed, the president’s signature achievement — will produce a robust public discussion about federalism, the proper role and scope of government, and the relationship between citizen and state in America. Conservatives should seize the opportunity even if potential nominees do not.

A few questions to get the press started:

Can Congress compel an individual to purchase a good or service from a private enterprise?

If your answer to #1 is yes, please identify the provisions of the U.S. Constitution that empower the federal government to require such purchase.

Do you maintain that fines imposed by Congress on individuals who fail to purchase health insurance constitutes a tax? If so, what kind of tax? Please explain the difference between a tax and a penalty.

Do you agree with Prof. Richard Epstein that Obamacare’s probable reduction in the risk-adjusted rate of return for non-monopoly health insurers may violate the Takings and Due Process Clauses of the Fifth Amendment? If not, why not?

If, under the Commerce Clause, Congress can regulate individual inactivity because such refusal to engage in commerce will have a substantial effect on the national health-care scheme, is there anything Congress cannot regulate? If so, what?

If you maintain that Obamacare’s individual mandate is a proper exercise of federal power under the Commerce Clause, please identify the rights still retained by the states and the people under the Tenth Amendment.

Can Obamacare extend contracting preferences to health-care institutions that engage in racial preferences without violating the Supreme Court’s holding in Adarand?


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