Conservative justices deny Congress a power that Congress doesn't want

[Reposted, with new post-mortem comments from Randy Barnett, chief architect of the case against the mandate.]

The first really substantive part of the "syllabus" or executive summary of the Supreme Court decision upholding the individual mandate and the ACA looked like Armageddon for the Administration:

2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16–30....

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clausewould give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” Pp. 16–27.

That is a straight exposition of the plaintiffs' core argument.  Congress cannot create commerce; Congress cannot regulate inactivity; Congress cannot compel commerce. It's a miracle that Roberts turned around and upheld the mandate as an exercise of Congress's taxing power.  But hasn't this decision dealt a blow to Congress's power to regulate commerce?  Does it kick off a rollback of the series of decisions in Roosevelt's second term that expanded that power?

Probably not. Congress's right to compel purchases is a conservative worry, not a liberal one. Verrilli's core "limiting principle" was essentially that insurance is unique (because you never know when you'll need the benefits), and health insurance a singularity within that singularity (because if you lack it, your fellow citizens will ultimately foot much of the bill).  And he meant it!

In his reply brief, Verrilli identified democratic accountability as the ultimate limiting principle that would confine the purchase mandate to health insurance:

Late pleadings for the ACA

For those who, like a besotted lover whose beloved's day to wed another fast approacheth, can't stop piling up arguments in favor of the constitutionality and necessity of the Affordable Care Act, a few eloquent doomed love notes:

1. Healthy twentysomething Mormon missionary can't buy coverage:

I hit the quarter-century mark on the eve of two adventures -- an LDS mission and life without health insurance.

Michael Carvin misrepresented the mandate in oral argument

Arguing before the Supreme Court on March 27 that the individual mandate in the Affordable Care Act forces people to buy more health insurance coverage than they need -- an argument that Alito, Roberts and Scalia also voiced -- plaintiff's counsel Michael Carvin asserted,  "Congress prohibits anyone over 30 from buying any kind of catastrophic health insurance"  (p. 105).

I've noted that someone should have stressed to the justices that the ACA does allow those under 30 to purchase purely catastrophic coverage. The AP has weighed in with a story citing insurance experts who assert that the "bronze" plans offered in the insurance exchanges are skimpy enough to reasonably be dubbed catastrophic coverage. Randy Barnett, a prime mover of the case against the ACA, rebutted that claim today, as did Carvin himself in the AP story.

In a way it's a perverse argument. Why should defenders of the law have to argue that the ACA allows people to buy coverage crummy enough not to be construed as an undue infringement on personal liberty? Be that as it may, I want to return to one point noted in passing in my original post.

While the assertion that the ACA offers "catastrophic" coverage to those who want the bare minimum depends on your definition of 'catastrophic,'Carvin's assertion that "Congress prohibits anyone over 30 from buying any kind of catastrophic health insurance" is simply not true.

The point is technical but telling. Carvin was exaggerating the extent to which the law requires Americans to buy more coverage than they might conceivably individually need, or think they need.