| Mr Khan said: Because where in the Constitution is the free market or economic liberty an enumerated power? The commerce clause is clearly there, but in this case there is nothing else in there to oppose the commerce clause. To state that we have a "right" to not be forced to buy anything is therefore false, as far as American jurisprudence should be concerned. The conservative justices will inject ideas of economic libertarianism into American jurisprudence that have no constitutional basis |
First of all, the "free market" is not a thing, it is an absence of a thing. The free market emerges through property rights - with the ability to voluntarily exchange your property. All other economic systems require some kind of forced removal of property by the state. Which means, under the 5th amendment, the Feds cannot take the property without a trial to determine its value. That, there, is an implied protection of the "free market".
Second, you're right about the Commerce clause existing. But, the Commerce clause has been bastardised from it's original intention. This mandate would stray even further from its original intention, and even extend power beyond what the clause has been used for in previous cases.
The argument of the Justices is that this law changes the relationship between the Federal Government and the individual in a very "fundamental" way. The Feds have never claimed (successfully) the ability to force purchase of a good/service before. When the Feds change something "fundamentally", there is a far stronger litmus test that it must pass before it is deemed Constitutional - the Government needs to prove that what it is doing is necessary, that it will work, and that there are no suitable solutions which will not cause this "fundamental" change. This is the point that the swing voter Justice Kennedy put up, he even used the term "fundamental".
The question now remains as to whether the judges believe that the mandate passes this litmus test. It's clear that half the court does, and half doesn't. It's down to whether Kennedy does or doesn't believe. It's a shame that such a controversial Bill, which will affect every citizen in the country, and give the Feds new precedents to coerce purchase, has basically come down to the views of one man. But that's what happens when you load the Supreme Court with partisan judges.
