Liberals were saying the same thing before oral arguments that they are saying even louder now: the Patient Protection and Affordable Care Act is so obviously constitutional that the Supreme Court simply must uphold it. When the solicitor general couldn’t articulate a coherent constitutional defense of the law or even competently answer entirely predictable questions about it, the subject was changed to “judicial activism” and power plays by right-wing justices (some of whom will be hailed as wise men if they do in fact vote to uphold Obamacare).
Let’s examine the high quality arguments that only ideology can keep the justices from finding persuasive.
Here we have James Fallows citing an email from a Dutch reader with an elementary school understanding of American politics. That emailer worries that “Scalia’s ‘originalism’ is being demonstrated to be fundamentally hollow and partisan,” without giving any sense he even knows what originalism means. Fallows himself concludes “real-world circumstances have changed so dramatically in the past 230+ years that the practical-minded drafters of the Constitution would never have suggested that the details of their scheme should be applied, unaltered, in the 21st century.”
Of course, that’s not originalism either. What is at issue here is whether the American people, through the process of ratifying the Constitution and its amendments, every understood themselves to be giving the federal government the powers it is now asserting. That’s not the same as saying the air force is unconstitutional because the Founding Fathers didn’t have planes.
This was sublime constitutional reasoning compared to this Slate piece invoking Dr. Seuss in defense of Obamacare:
It helps me to recall that even Dr. Seuss’ creatures were able to overcome their short-sightedness. One day, the Sneetches got “really quite smart” and recognized that belly star or not, “Sneetches are Sneetches.” Were we to come to a similar conclusion, the Affordable Care Act would have nothing to fear.
If that helps you to recall, be my guest pal.
And for the win, we have the president asserting the following: “I’m confident that this will be upheld because it should be upheld.” That is, in essence, the constitutional argument here. The should be clause, the latest emanation or penumbra, joins the commerce clause (redefined as a power to regulate everything) and the necessary and proper clause (redefined as a mandate to pass any old law Congress wants) as a get-out-of-jail-free card for federal pols exercising unenumerated powers.