So it seems the justices will hear the entire case. Today’s opening argument was this: the government hasn’t penalized anyone yet for not offering or taking health care. So, what’s to argue? The comments from all of the Justices, however, seem to be – we’re moving forward.
So, tomorrow is the guts. The constitutionality of Obama Care will be tackled.
So, I went to one of my experts. Ken Lakin is a Boston area attorney. He’s one of the best and most passionate attorneys I know. You get a double dose of him because he has a twin brother, John, practicing in Florida and on the ballot for a judgeship. Ken and John know the law, but they also explain it — so you and I get it.
Overall, Ken tells me the states argument is weak. Ken explains that the Commerce Clause (Article 1, Section 8, Clause 3) supersedes individual contracts.
Ken cites two cases. One is Wickard v. Filburn. Here’s a good piece on that case. It’s a 1940s case where the government prohibited how much wheat a farmer could grow. The other is Gonzales v. Raich which recently allows the federal government to control the commerce of cannabis over state laws. Here’s more on that case.
Ken says this is where it could get interesting. Those cases were about regulating activity; in other words, something was manufactured, or grown in these two cases. It was an “activity.” The difference with health care reform, he says, is whether the federal government can regulate something that is “inactive.” Ken explains: “They’re not creating commerce and the government is mandating the activity.”
And Ken says this could be the best argument to knock down Obama Care.
So, here’s the key to pay attention to.
Listen to the questions from the conservative Justices – Scalia, Thomas, and Alito. If they start asking questions about “inactivity and activity”, then pay attention to the answers from Solicitor General Donald Verrilli, arguing for the Obama Administration.
“Does he have examples of the commerce clause,” Ken says, “where the government controlled inactivity as opposed to just activity?”