As most readers are no doubt aware, the Supreme Court this week takes up six hours of argument in the Obamacare litigation. Constitutional claims that were originally dismissed as “frivolous” and “easy” are now getting three days of hearings — unprecedented in the modern era. The Court has thus signaled what the American people have known all along, that the government’s breathtaking assertion of power goes beyond anything attempted in the history of the Republic. Rather than repeat my previous writings on the subject, here’s a sketch of each of the four issues the Court will examine, along with a link to my recent op‐ed on the subject (this month I’ve written on three of the four) and the relevant Cato amicus brief:
- Whether the challenge to the individual mandate is barred by the Anti‐Injunction Act. –- 90 minutes on Monday — op‐ed and brief.
- Whether Congress has the power to enact the individual mandate. –- 2 hours on Tuesday — op‐ed and brief.
- Whether and to what extent the mandate, if unconstitutional, is severable from the rest of the law. –- 90 minutes — op‐ed (with Richard Epstein and Mario Loyola) and brief.
- Whether the new conditions on all federal Medicaid funding (expanding eligibility, greater coverage, etc.) constitute an unconstitutional coercion of the states. – 1 hour — brief.
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