March 28, 2012 04:00 PM UTC

"Obamacare" In The Dock

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• by: Colorado Pols

The Washington Post updates from yesterday’s big day at the Supreme Court:

The Supreme Court’s conservative justices appeared deeply skeptical Tuesday that a key component of President Obama’s sweeping health-care law is constitutional, endangering the most ambitious domestic program to emerge from Congress in decades.

In an intense interrogation of the government’s lawyer, Solicitor General Donald B. Verrilli Jr., the justices posed repeated and largely unanswered questions about the limits of federal power. At the end of two hours, the court seemed split on the same question that has divided political leaders and the country: whether the Constitution gives Congress the power to compel Americans to either purchase health insurance or pay a penalty.

The answer is likely to come from Justice Anthony M. Kennedy or perhaps Chief Justice John G. Roberts Jr…

Tuesday’s arguments were the most dramatic so far of the Supreme Court’s three days of hearings on the Patient Protection and Affordable Care Act, and the session was perhaps the most remarkable one since the court decided the 2000 presidential election with its ruling in Bush v. Gore.

Yesterday’s arguments, as expected, revolved around the federal government’s constitutional power to regulate interstate commerce. This is a power which has been broadly defined in the last century, going back to (and preceding) a case called Wickard v. Filburn where it was established that even the growing of a small noncommercial plot of crops on private land had an impact on “interstate commerce.” It’s expected that conservative arguments against the health insurance mandate will seek to irrationalize the application of the commerce power, likening its use in this case to forcing citizens to eat broccoli. But the truth is that the federal government has already delved quite deeply into the daily lives and economy of American citizens, and the right to do so has been upheld with respect to everything from product safety to drug enforcement.

Supporters say this is no different than the authority the federal government uses to constitutionally do many uncontroversial things–and to upend that authority here would upend the federal government’s authority in unexpected and very troubling places.

All this and the 2012 elections could be riding on this decision. That’s the biggest risk of tainting the outcome, so here’s hoping “Obamacare” gets fair consideration–maybe for the first time.