The central question in the U.S. Supreme Court's review of the Democratic Party's health care overhaul is legal, not partisan: Does the Constitution limit the power of the federal government, or not?
That same question was raised repeatedly in debates about the legislation in 2009 and 2010. When President Barack Obama signed the Patient Protection and Affordable Care Act into law two years ago, he and his party insisted it was within the authority of Washington to require every American to purchase health insurance and punish all who don't. Minority Republicans panned the mandate as an unconstitutional overreach. The legal question created a partisan split.
The divide was evident again Tuesday. In hearing arguments on the heart of the law better known as ObamaCare, four justices nominated by Republican presidents offered skeptical questions about the constitutionality of the insurance mandate, and the four justices nominated by Democratic presidents seemed inclined to defend it. (Justice Clarence Thomas, a reliable constructionist, was silent as usual.)
Such comments do not carry the power of votes, which aren't expected to be revealed until late June, but they generally reveal the ideologies that shape the court's written opinions. And it was evident Tuesday that ObamaCare is in deep, deep trouble.
"Do you not have a heavy burden of justification to show authorization under the Constitution?" Justice Anthony Kennedy, the centrist court's swing justice, asked at one point of Solicitor General Donald Verrilli Jr. "Can you create commerce in order to regulate it?"
Justice Kennedy wondered whether the mandate "is a step beyond what our cases allow."
"So if I'm in any market at all, my failure to purchase subjects me to regulation?" Justice Antonin Scalia asked, suggesting that upholding the law could allow Congress to compel Americans to buy anything from cars to broccoli. Chief Justice John Roberts said under the logic of ObamaCare, Americans could face a mandate to buy cellphones, and Justice Samuel Alito wondered whether citizens should be ordered to buy funeral insurance.
Liberal justices defended the 2,000-page statue, often making arguments to their colleagues on the court instead of presenting questions to counsel.
Justice Scalia returned the rapid-fire arguments to the core issue: "Government is supposed to be a government of limited powers," he said. "What is left if the government can do this? What can it not do?"
Indeed, to rule ObamaCare constitutional, five justices must reject the clear wording of the nation's founding document, which sharply limits federal power to prevent the creation of the tyranny our forefathers escaped. These justices took an oath to uphold and defend that document, not belittle it and subject it to the whims of partisans.
The constitutionality of ObamaCare is a legal question. And the answer couldn't be more clear.