There has been a lot of talk and analysis, including here at Wake up America, about the last three days of arguments in the Supreme Court hearing on the constitutionality of the individual mandate included in Obamacare.
Many liberals are criticizing Solicitor General Don Verrilli for his defense of the Affordable Care Act aka Obamacare but some are noticing that even the liberal Supreme Court Justice Stephen Breyer made some very noticeable mistakes in his own contribution to the hearing.
He quoted a few cases, including the creation of the national bank, Congress making people drive faster than 45 -- 40 miles an hour on a road, spouses being responsible for removing their significant other's marijuana stashes and a man growing his own wheat go into the market and buy other wheat for his cows.
Breyer cited case law, but in all four instances got it wrong.
Via Campaign 2012 written by Conn Carroll:
Breyer alludes to four Supreme Court cases. And he manages to botch the key facts of the case in every single one of them. Let's start at the top:
That's the national bank, which was created out of nothing to create other commerce out of nothing.
This is a reference to McCulloch v. Maryland, in which the Court upheld Congress' ability to create the Second Bank of the United States. But, as Paul Clement pointed out in oral argument, Chief Justice John Marshall found that Congress' power to create the bank came from the Necessary and Proper Clause, not the Commerce Clause as Breyer suggests. Furthermore, Congress did not compel individuals to deposit money in the bank, only that Congress could create it in order to better manage its financial affairs.
Next Breyer says:
I say, hey, can't Congress make people drive faster than 45 -- 40 miles an hour on a road?
No, actually they can't. Or at least no Court precedent says they can. The closest case is South Dakota v. Dole where the Court held that Congress could force states to raise their drinking age to 21. But again, that wasn't even a Commerce Clause case, it was a Spending Clause case (just like Wednesday's argument over the Medicaid expansion). And while Congress has, in the past, forced states to adopt a national speed limit in exchange for highway funds, it has never forced anyone to drive at a minimum speed.
Didn't they make that man growing his own wheat go into the market and buy other wheat for his -- for his cows?
No, they didn't. Breyer is pretty clearly referring to the landmark New Deal case Wickard v Filburn here, a case where the Department of Agriculture fined a farmer for growing more wheat than the government set quota allowed. Again, no one forced the farmer to do anything. He could have chosen not to grow wheat, or not to be a farmer at all. The individual mandate is completely different because Congress is forcing all Americans to buy a specific product as a condition of their existence within the U.S.
Didn't they make Mrs. -- if she married somebody who had marijuana in her basement, wouldn't she have to go and get rid of it?
Again, no. The plaintiff in the Court's recent medical marijuana case, Gonzalez v. Raich, was suing the federal government to stop them from destroying her pot. No one was forcing her to grow pot or to go around throwing away other people's pot. Where Breyer came up with this fact pattern is a complete mystery.
Mr. Carroll's conclusion is one many may agree with when he writes "If this is the quality of argument the liberals on the court are making to Justice Kennedy, the individual mandate is a goner."
These examples have been mentioned by more than just Campaign 2012 and brings me back to a point I made in my last post about liberals' inability to defend the indefensible.
If this is the best the left could do in a fight they have had two years to prepare for, then the Supreme Court should strike down the individual mandate and since Democrats removed the severability clause, the whole law should fall with it.
As Steven Hayward over at Power Line highlights, the Obamacare arguments ends what has been a "Terrible, No Good, Very Bad Month for the Left."
Transcript and Audio- Supreme Court Hears Obamcare: Day Two Arguments
Transcript and Audio- Supreme Court Hears Obamcare: Day Three Arguments