Most liberal legal commentators and academics have been quite dismissive of the constitutional arguments against the individual mandate. The same cannot be said of the Supreme Court. This week’s oral arguments in Department of Health and Human Services v. Florida made clear that a majority of justices take these arguments very seriously, and may even strike down the law. This is heartening. The individual mandate represents an unprecedented assertion of federal power in that it is premised on the claim that the federal government may compel commerce in order to regulate it and that federal regulatory authority may reach each and every American without regard to the choices he makes. Such an assertion of federal power reflects neither the letter nor the spirit of the Constitution, and should be struck down for exceeding the scope of the federal government’s limited and enumerated powers.
Commentators aghast at the possibility that the Court may invalidate a key portion of President Obama’s signature legislative accomplishment have suggested that doing so will undermine the Court’s credibility. They suggest that a decision striking down the mandate would be another Citizens United or, worse, Bush v. Gore. Given the mandate’s unpopularity, this is a hollow threat. If anything, the justices should be more wary of another Kelo, of upholding an assertion of government power that most Americans find repugnant. This is not to suggest the justices should base their decision on popular opinion, for the Constitution should be their guide. It is, however, to suggest that the Court’s credibility is at risk when it fails to constrain unconstitutional assertions of government power.
— Jonathan H. Adler is Johan Verheij Memorial Professor of Law, and Director of the Center for Business Law & Regulation, at the Case Western Reserve University School of Law.
If the question is what I hope to see from the Supreme Court, the answer is that 1) the mandate is declared unconstitutional and 2) the Court strikes down the whole law because the mandate isn’t severable. And, like a former president, I still believe in a place called Hope.
But the scenario above is grounded in more than hope. By happy coincidence, it also reflects the best interpretation of Supreme Court precedent regarding the key questions of congressional authority and severability. As Justice Kennedy suggested in oral arguments yesterday, the government bears a heavy burden in this case, in large part because it is seeking to break new ground in terms of congressional authority.
It is not just that never before has Congress used its Commerce Clause authority to force people who are not in a market — who are doing little more than sitting on couches eating Cheetos — to buy a product they do not want to buy, although that would be enough. It is that the government’s argument, if successful, would apply to far more than health care. Indeed, it would fundamentally alter our system of government, granting to the federal government the kind of general police powers that the Constitution reserves for the states.
But however the Supreme Court rules, the decision will not make good health-care policy — that question isn’t even before the Court. It really can’t be said too emphatically that members of Congress should not be looking for the Supreme Court to save them from themselves. Instead, lawmakers should be prepared (in case the Supreme Court doesn’t throw out the whole law) to clean up any of the mess that is Obamacare that may remain. Only after full repeal can Congress get started on advancing patient-centered, free-market health reforms.