Over at CNN, law professor Ilya Somin explains why he believes the health care bill is unconstitutional, and the Supreme Court should strike it down. He argues on commerce clause grounds:
[E]very previous case expanding the commerce power involved some sort of “economic activity,” such as operating a business or consuming a product. Failure to purchase health insurance is neither commerce nor an interstate activity. Indeed, it is the absence of commerce.
If Congress could use that clause to regulate mere failure to buy a product on the grounds that such inaction has an economic effect, there would be no structural limits to its power.
In other words, the real question being decided is whether or not there are limits to Congress’ power. If Congress has unlimited power, the insurance mandate stands. If there are limits to Congress’ power, it has to be struck down. It’s pretty easy to see that this case will have consequences far beyond the piece of legislation that sparked the case.
It’s too early to tell how it will turn out. Today is the first of three days of oral arguments, and the Court probably won’t release its decision until June.
In the meantime, a bit of advice to court watchers of all ideological stripes: don’t confuse the Constitution with constitutional law. They are very different things. That’s why this case really could go either way.