- The Washington Times - Sunday, April 1, 2012

The past - case law, legal precedent and prior decisions - is usually a critical element of Supreme Court deliberations. But last week’s oral arguments on President Obama’s health care law indicate this court’s nine justices are focused on another factor altogether: the future.

The Obama administration and other backers of the Affordable Care Act went into the arguments confident the law would be upheld if the justices followed the precedents they and their predecessors had set over the past 70 years of jurisprudence.

But during the final two days of arguments, the justices barely mentioned previous cases, spending time instead mulling hypothetical situations in attempts to determine where the law’s constitutional limits are drawn.

“What I saw … was five justices who took off their chains,” said Ian Millhiser, a policy analyst for the liberalCenter for American Progress. “That’s scary whether you like the opinion they wind up writing or you don’t, because it means that the next time around they’ll be free to take the chains off again.”

In the briefs it submitted defending the law, the Obama administration repeatedly pointed to landmark Commerce Clause cases such as Wickard v. Filburn and Gonzales v. Raich to remind the court it already has allowed the government to regulate activities closely related to interstate commerce.

Meanwhile, those challenging the law pointed to two outlying cases in 1995 and 2000 when the court found limits to Congress’ power under the Commerce Clause, and struck down two laws as unconstitutional.

But instead of talking about how those cases inform the decision they face now, Republican-appointed justices Samuel A. Alito Jr., Antonin Scalia and Chief Justice John G. Roberts Jr. peppered Solicitor General Donald B. Verrilli Jr. with questions such as why the government couldn’t also force people to buy cellphones, cars or broccoli, if it can make them buy health insurance.

“So can the government require you to buy a cellphone because that would facilitate responding when you need emergency services?” Chief Justice Roberts said. “You can just dial 911 no matter where you are?”

And Justice Alito pushed Mr. Verrilli to explain the difference between mandating health insurance and burial insurance. “Most people are going to need health care,” he said. “Almost everybody. Everybody is going to be buried or cremated at some point. What’s the difference?”

The tenor and intensity of their questions left the administration and supporters of the law reeling and wondering whether the court will do an about-face on Commerce Clause jurisprudence.

Mr. Millhiser called the potential scenario “shocking and terrifying.”

“If the justices start acting like every single case is a blank slate they can do whatever they want with, then my law degree isn’t worth very much,” he said. “But beyond that it has terrifying implications for the country.”

Court-watchers said the challengers, and not the administration, seemed to set the terms of the debate, as the justices pushed the administration to offer a “limiting principle” - an example of something the government can’t do if it can mandate insurance.

“I think this demonstrates that the plaintiffs have been very successful in framing the case for the justices as ‘this is something that is unprecedented, this is a major step, it has all kinds of ramifications in the future,’ ” said Tim Jost, a Washington and Lee University law professor who supports the individual mandate.

Even moderate Justice Anthony M. Kennedy, a typical swing vote on the court, suggested to Mr. Verrilli that he has a weighty burden to prove the government can require Americans to buy insurance without violating the Constitution - although he also seemed to agree with the administration that the health care market is unique from other types of markets.

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