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In doing research for an unrelated editorial, I came across a video of U.S. Sen. Richard Blumenthal giving what I found to be a succinct and understandable argument why it would take a radical decision for the U.S. Supreme Court to find the Affordable Care Act unconstitutional. You can check it out here.
Note also that Blumenthal, the former attorney general of Connecticut who as young man served as a law clerk to Supreme Court Justice Harry A. Blackmun and who has argued before the court, also warns against making conclusions about how the justices will rule based on their questions.
Of course Blumenthal, a Democrat and supporter of the health care act, has political reasons to want the Supreme Court to uphold its constitutionality. Still, I don’t think a fair observer can simply dismiss his points as only motivated by politics.
I do disagree with Blumenthal’s contention that to uphold the constitutionality of the Affordable Care Act the justices do not need to find a “limiting principle” on the “individual mandate.” I think they do and I think they have one. If there is no limiting principle, then Congress could use the Commerce Clause to force Americans to buy all kinds of products for their good and the good of the market.
But having listened to the recording of the arguments, I found that U.S. Solicitor General Donald Verrilli, in his bumbling, stumbling way, did finally provide the limiting principle. Unlike most any other product, health care is something almost everyone will have to purchase at some time. The Affordable Care Act, therefore, does not compel the purchase of this product, but rather dictates how it should be paid for — by requiring everyone to have health insurance. The court in its decision could thus limit Congress’ ability to compel a purchase only in such cases where the purchase will have to be made eventually anyway; where there is a logical argument why the alternative means of purchase is fairer; and in which the commerce under debate is national in nature.
If the justices do not pick up this limiting principle from Verrilli’s arguments, I am sure Justice Elena Kagan will be happy to spell it out.
This ain't broccoli.
Which is why I am now going to do something Blumenthal and others have warned not to do; make a prediction. The Supreme Court will uphold the Affordable Care Act, including the individual mandate, by a 6-3 vote, with Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, Ruth Bader Ginsberg, Sonia Sotomayor and Kagan in the majority.
I'd also like to point out that I predicted both the Red Sox and Yankees would begin the season 0-3. But I can't, because I didn't.