On the recordJune 7, 2012
I stand today to respond to what I believe are irresponsible and dangerous attacks on the legitimacy of the Supreme Court of the United States. Over a 3-day period, beginning on March 26 of this year, the Supreme Court held more than 6 hours of oral argument to address the constitutionality of the Affordable Care Act. I was privileged to attend each of those sessions, and I can say that as a lifelong student of the Constitution and as one who served as a law clerk at the Supreme Court of the United States, I was very interested to not only watch the arguments but also to read many of the briefs and follow each of the proceedings very closely. Like so many others who watched or read those proceedings, I was most impressed by the quality of the questions, the quality of the advocacy, and the overall discussion that took place in the Supreme Court. Through their questions, the Justices showed keen interest in the nature of the arguments made in support of ObamaCare. For example, Justice Kennedy asked whether, under the administration's theory of the commerce clause, there could be any meaningful limitation on the Federal Government's power under the commerce clause. He asked specifically, ``Can you create commerce in order to regulate it?'' Such questions and hypotheticals are common and they are a useful way by which lawyers and judges tend to test the basic principled limits enshrined in our Constitution.…
