Part I of III
Next week the Supreme Court will hear arguments about the Affordable Care Act. There was a dueling pair of editorials regarding this issue. One by Jon Cohn at The New Republic and one by Adam White at The Weekly Standard. Both are pretty instructive and largely overlapping. Obviously I'm partial to the latter.
Both make the claim that this issue is as difficult as it is to litigate because it is unprecedented. Without similar legislation being contested in court, the judges don't know which direction to take. I want to take Jon Cohn's argument piece by piece.
Interstate Commerce Argument
Cohn argues here that the Court has never before limited Congress's power to regulate by proscribing an ability to force private citizens to purchase goods or participate in a market. This is true, but Cohn doesn't explain that this precedent doesn't exist solely because Congress has never attempted to have a mandate. It's not as if Congress has passed multitudes of laws forcing people to purchase certain goods and services, and never before has a court suggested that Congress had no such power; Congress has never pushed its powers so far. What's unprecedented here is Congress's chutzpah.
His final paragraph stresses Justice Silberman's argument that Congress has the power to impose "national solutions to national problems" and asks if conservatives believe Congress doesn't have the authority to address national problems. Congress can of course pass legislation to deal with national problems--as long as that legislation is constitutional. Being a national problem does not give Congress a free pass to do anything it pleases. I'm sure Mr. Cohn doesn't believe Congress can ignore the Bill of Rights if it deems a problem national. Terrorism is a national problem, but Americans' rights as outlined in the Constitution are supreme.
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