I think many people are being too harsh on Solicitor General Donald Verrilli’s performance trying to make the case for the individual mandate in Obamacare.
Yes he looked foolish in his arguments before the Supreme Court, but to be fair the mental gymnastics required to explain how this law is constitutional are beyond anyone’s capability. To buy his argument, he needs to convince a group of people sworn to uphold and interpret the constitution, to ignore what it says and 200 years of precedent. If we have honest Supreme Court justices the individual mandate should be struck down 9-0. However many are suggesting four justices are willing to ignore the constitution and uphold the mandate. I would hope that is not true, but if it is it means we are perilously close to having a majority on the Supreme Court with no respect for the U.S. Constitution. Also, if this is true, the death of one of five people while Obama is president would shift the court to the majority favoring removing any restraint on the power of the Federal Government.
Many conservatives, like Mark Levin, have argued we are living in a post-constitutional America. I tend to agree that the courts have allowed the federal government to expand it’s powers past what the constitution allows. Upholding the individual mandate would eliminate any pretense of the decision being based on the Constitution. To declare that the federal government has the power to mandate the individual has to engage in commerce for no other reason than that they exist, would be to declare almost no limit to the power of the federal government. This would be a step so far that no rational person could argue we are not living in a post-constitutional America.
For now we must wait to see, but if we get any votes to uphold the mandate we need to ensure any future president would chose justices that support the Constitution. This alone would be reason enough Obama should not be re-elected, even if he had not failed miserably in every other aspect of the job such as energy policy, budgets, protecting entitlements from bankruptcy, foreign policy, etc. The positive side is if the Obama appointees vote to uphold the mandate, it will make it clear to those who have not seen the obvious to this point, that Obama, like all progressives, has no respect for the Constitution.