Justice has aggressively defended the mandate as its own regulation of economic activity, but is now stepping up a separate argument emphasizing that the mandate is part of a broader regulatory scheme.
The shift moves the focus of Justice's argument from the Commerce Clause of the Constitution to the Necessary and Proper Clause, which says Congress can make laws that are necessary for carrying out its other powers
Some legal experts say the shift could steer the case in a direction that would make Justice Antonin Scalia more likely to uphold the healthcare law's mandate requiring individuals to purchase health insurance.
Oral arguments in the landmark case are set to begin March 26, and the justices are expected to give a ruling in June, just months before the presidential election.
If it stands, our Republic is over. The new Socialist Empire of the United States will be born. You will be told what to buy, how to live and how to work, what to eat and you will turn your children over to be wards of the State.
I don't see how this works. If the underlying mandate is unconstitutional, then how does Necessary & Proper save it? Seems like laws which are necessary & proper to carry out constitutional duties couldn't expand the scope of constitutionality.
One wonders if Obama's DOJ is trying to lose this case. Lose a battle, but win the war by getting reelected?
It kind of makes sense, especially if Romney is the nominee. Obama could actually position himself to Romney's right. He would say, yeah we tried Romney's approach but the SCT struck it down, and when we look at the CBO numbers and what is happening in MA we think this approach doesn't work well in practice either. So reelect us and we'll fix healthcare, but we'll find a better way than Romney did. That would be very difficult for Mitt to answer.