Oral argument on whether the individual mandate exceeds Congress’s commerce power was today.
1. Key language from Justice Kennedy here.
2. Transcript here.
4. Credit where credit is due.
5. The bottom line I acratically endorse.
Update, two other items:
A. Assessment from another savvy court watcher, agreeing with co-blogger Lyle’s evaluation.
B. Journalistic hyberbole.
I have not yet read the transcript because I will listen to it later tonight. As Chris points out in the comments, if what everyone’s saying about Scalia is right then my expectations have been defied. I will be interested to see whether he perceives any need to distinguish, or even acknowledge, his concurrence in Raich:
Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. See Lopez,supra, at 561; ante, at 15, 21, 22. This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”Lopez, supra, at 567—568. . . . Lopez and Morrison affirm that Congress may not regulate certain “purely local” activity within the States based solely on the attenuated effect that such activity may have in the interstate market. But those decisions do not declare noneconomic intrastate activities to be categorically beyond the reach of the Federal Government. Neither case involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation.
The language is tailored to the vindication of Obamacare.