National Review Symposium on the ACA Oral Arguments

(Ilya Somin)

National Review has posted a symposium on this week's ACA oral arguments, with contributions by various conservative and libertarian pundits, policy experts, and legal scholars. The symposium includes short assessments of the argument by co-blogger Jonathan Adler and myself. Here's an excerpt from my piece:

This week's Supreme Court oral argument did not go well for the individual mandate. The conservative justices zeroed in on the biggest weakness in the pro-mandate case: the fact that the federal government's rationales for the law would also justify virtually any other federal mandate, including laws forcing people to purchase broccoli, cars, or just about any other product. This undercuts the principle that the Constitution sets limits to the scope of federal power….

It is still far from certain that the plaintiffs will prevail. The federal government has numerous arguments intended to prove that this mandate is unique. If it can persuade just one of the conservative justices to accept just one of these theories, it can still win, since it is certain to get the votes of the four liberals. Nonetheless, the mandate is looking a lot shakier than many expected.