This report from The Hill is significant:
The Obama administration has shifted its legal arguments as it prepares to defend the president’s healthcare law before the Supreme Court.
Written briefs in the landmark case increasingly have focused on a part of the Constitution that didn’t get much attention in lower courts….
The shift moves the focus of Justice’s argument from the Commerce Clause of the Constitution to the Necessary and Proper Clause, which says Congress can make laws that are necessary for carrying out its other powers.
Although I am not a lawyer, I see the shift as having two meanings: (1.) the administration was getting edgy that its original justification won’t fly and is scrambling to find another one, and (2.) the administration realizes that, if the mandate is overturned, Obamacare is over. The mandate was necessary for Obamacare. The Supreme Court will determine if it is proper.
According to The Hill, the briefs give a long history of attempts to overhaul the health system and say that the new law was an attempt to finally accomplish this long-held goal. The switch in arguments is said to be a way to bring Justice Scalia aboard.
The key issue before the court, as you know, is whether the federal government can compel a citizen to buy health insurance and then punish those who don’t.
The Volokh Conspiracy, the respected legal blog, has an interesting piece explaining why the Necessary & Proper clause might not save Obamacare.
The brief item has a discussion of the clause and Chief Justice Marshall’s wrestling with it in a particular case. It is complex, but the nugget is this:
In 1787, a consumer could at least choose not to buy the monopolist’s product. ”The conclusion is clear: if a commercial monopoly—which citizens may avoid by not purchasing the product monopolized—is constitutionally void as ‘improper,’ then far more ‘improper’ is a mandate for the benefit of political favorites, which none but other political favorites may avoid. . . . [C]oerced commerce with congressionally favored oligopolists is constitutionally improper and void.”
Thus, if the Supreme Court follows the original meaning of the Necessary and Proper clause, and McCulloch v. Maryland‘s accurate exposition of that meaning, the Court will not rule in favor of the individual mandate as a necessary and proper exercise of the power to regulate interstate commerce.