Nevermind Wickard then.

When I opined last week on the need for the Supreme Court to overrule Wickard, I'd forgotten how slowly those wheels of justice grind, and why.

Nobody likes to tell their elders they got it wrong.

We've seen reform in the Blue Brotherhood, breaking the traditions of silence that protect the bad apples. We've seen the Catholic clergy step up -- finally -- to address the fact that pedophiles are rarely reformed, despite what the psychological experts might have promised in recommending a career transfer, not outright retirement, or confinement.

But the boys in the Black Robes? Not sure if they're evolving as rapidly, though some say the inclusion of women helps -- because they presumably are better at admitting their error = less personally invested, not so driven to "save face" by never admitting you got one wrong.

Did you know, Korematsu and Dred Scott were never overturned by the Courts outright, as futher amendments and legislation voided the need. We talk down those decisions now, but the Court is still on record as having gotten it ... wrong.

So now here come the constitutional healthcare challenges. Georgetown Law Professor Randy Barnett says there's no need to address Wickard even -- they don't have to "correct" the robed eminences of the past, in order to stop at the pass this further economic grab by the federal government...

Requiring an individual to purchase a product (insurance) they don't use or need, solely on the poor prediction that statistics show one day they might need to consume healthcare services and not be able to afford them paying outright, is a gross overreach.

If you listen to Paul Krugman, you understand it's a cost shift. The only way the numbers add up is those currently not paying premiums and not consuming... continue not consuming but are forced to pay premiums to cover those with pre-existing conditions. But what if -- like so many insureds now -- behaviors change? Isn't that a big problem with the current system? People pay those premiums and want to get ... their monies worth. God help us if all those mandatorily required to support the system suddenly start making appointments and are now sharing those waiting room chairs. (Never underestimate psychology in strong-arming someone to pony up for a gift you are so generous as to provide to another.)

The Court can forsee the consequences of expanding the government's reach into our personal economic decisions here -- look at the effect of decades of entitlement promises now, the bills coming due, that has yet to be addressed before we promise more.

Professor Barnett, amongst others, urges the Court to shut the door on expanding the Commerce Clause reach, even if there's no will amongst the Justices as of yet, to correct the poorly reasoned Wickard decision.

Yet, like the government, Judge Steeh is silent on the radical implications of accepting this new doctrine. Imagine all the slippery slope questions in oral argument when the “economic decisions” doctrine is more seriously considered than it was by Judge Steeh.

Conversely, there are zero slippery slope objections to striking down all economic mandates that reach inactivity. Why? Because the individual insurance requirement is the only such economic mandate ever enacted.

So it is the only law that would be unconstitutional if the Supreme Court concludes that Congress has no such power to impose economic mandates under the Commerce and Necessary & Proper Clauses.

For all these reasons, Judge Steeh’s opinion yesterday serves to highlight for other judges, and Justices, the truly revolutionary implication of upholding this mandate without even attempting to deal with these implications. In this way, it actually contributes to the constitutional case against the individual mandate.

He's writing the way out -- should it come to that without political resolution -- for the conservative and moderate justices who understand the limiting role of government, and the need to protect individual interests from the promises, still to be fulfilled, of well-heeled "experts".