In interesting look at Obamacare in front of the Court

As the Supreme Court looks at the constitutionally of Obamacare I found this article from Reason Magazine. Worth the full read.

The 4 Best Legal Arguments Against ObamaCare


Why the president's sweeping health care overhaul should be struck down by the Supreme Court.


Damon W. Root


...Twenty-six of those states, plus the National Federation of Independent Business and several individuals, are challenging the health care law, claiming it is an illegal power grab by the federal government that tramples the Constitution and undermines the principles of federalism.


Contrary to what Nancy Pelosi would have you believe, these challengers have a strong and serious case. Here are four of their best arguments against the individual mandate.


4. The Individual Mandate Threatens the Foundations of Contract Law


American contract law rests on the principle of mutual assent. If I hold a gun to your head and force you to sign a contract, no court of law will honor that document since I coerced you into signing it. Mutual assent must be present in order for a contract to be valid and binding.


This view was widely shared by the framers and ratifiers of the U.S. Constitution. Here’s how Pennsylvania lawyer James Wilson, a signer of both the Declaration of Independence and the Constitution, put it in one of his legal lectures:


The common law is a law of liberty. The defendant may plead, that he was compelled to execute the instrument. He cannot, indeed, deny the execution of it; but he can state, in his plea, the circumstances of compulsion attending his execution; and these circumstances, if sufficient in law, and established in fact, will procure a decision in his favour, that, in such circumstances, he did not bind himself.


The individual mandate turns this longstanding legal principle on its head. After all, there’s nothing mutual about the government forcing you to enter into a binding contract with a private company. As the Institute for Justice, the public interest law firm that pioneered this argument, explains in the powerful friend of the court brief it filed in the case, the framers of the Constitution “would never have given, and in fact did not give, Congress, through the guise of the Commerce Clause, the power to gut the foundation upon which the entirety of contract law rests.”


3. The Individual Mandate Cannot Be Justified Under Existing Supreme Court Precedent


...Yet neither of those precedents stretched the Commerce Clause so far as to allow Congress to regulate inactivity—such as the non-act of not buying health insurance. As the National Federation of Independent Business argues in its brief, “uninsured status neither interferes with commerce or its regulation nor constitutes economic activity. Instead, the uninsured’s defining characteristic is their non-participation in commerce.”


2. The Individual Mandate Rests on an Unbounded and Unprincipled Assertion of Federal Power


Does the Commerce Clause allow Congress to do anything it wants so long as an economic activity is remotely involved? Under the government’s theory of the case, yes, congressional power is essentially unlimited. As the D.C. Circuit Court of Appeals remarked in its ruling on the individual mandate:


The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause.


Solicitor General Donald Verrilli will need to come up with something better than that when he argues the case before the Supreme Court. As the multi-state challengers put it in their Supreme Court brief, "there is no way to uphold the individual mandate without doing irreparable damage to our basic constitutional system of governance." At a minimum, the Court's conservatives will expect the solicitor general to lay out a plausible limiting principle for congressional power under the Commerce Clause. If Verrilli does not—or cannot—do that, the individual mandate is in big trouble.


1: The Individual Mandate Violates the Original Meaning of the Constitution


Article 1, Section 8 of the U.S. Constitution grants Congress the power “to regulate commerce...among the several states.” The framers and ratifiers of the Constitution understood those words to mean that while congress may regulate commercial activity that crossed state lines, Congress was not allowed to regulate the economic activity that occurred inside each state. As Alexander Hamilton—normally a champion of broad federal power—explained in Federalist 17, the Commerce Clause did not extend congressional authority to “the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation.” In other words, the Commerce Clause was not a blank check made out to the federal government....


... As Justice Clarence Thomas remarked about the majority’s reasoning in Raich, “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”


Unfortunately for constitutional originalists, Thomas is unlikely to persuade a majority of his colleagues to wipe the slate clean by overturning Wickard and Raich. But as I explained earlier, the Supreme Court already has sufficient reason to strike down the individual mandate without touching any of its existing precedents. That approach—which targets the mandate's unprecedented regulation of inactivity—could satisfy both Thomas and his faint-hearted originalist colleagues on the bench. If five or more justices are interested in expressing at least some fidelity to the text of the Constitution, the individual mandate is finished.

You can never tell how SCOTUS will rule. Past rulings are no guide. And I'm not one for judges using their emotions in evaluating a case...but the members of the court should remember B Hussein Obama's  childish lecturing spat at the State of the Union a couple of years ago.

Let us pray SCOTUS gets this right. If it's allowed to stand this country is doomed.