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Don’t Give Up on the Constitutional Challenges



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Nearly all of the cable-show pundits who’ve remarked on the constitutional challenges to the individual mandate have dismissed the likelihood that the challenges will succeed. Apparently, the talking head style manual requires the use of the phrases “extremely difficult” and “uphill battle” whenever discussing attempts to overturn the provision.

Their pessimism is bewildering to some of us who litigate for a living.

Sure, taking a Commerce Clause challenge to the Supreme Court isn’t a cakewalk. Standing, ripeness, etc., issues may prove as nettlesome as the merits of the case. But the likelihood that the state attorneys general will succeed is far from remote.

Yes, courts have accorded Congress significant, sometimes baffling, latitude under the Commerce Clause (even Scalia in Gonzalez v. Raich yields to Congress due to the broadening effect of the Necessary and Proper Clause). But in each of the cases cited most often by defenders of Obamacare’s constitutionality — Wickard v. Filburn, U.S. v. Darby, Heart of Atlanta Motel v. U.S., Perez v. U.S., etc. – Congress was regulating an activity affecting interstate commerce. Defenders of Obamacare’s individual mandate will be placed in the unprecedented position of urging that Congress can regulate inactivity, i.e., a manifest refusal to engage in commerce, because of such inactivity’s attenuated bearing on commerce. Such an elastic interpretation of the Commerce Clause would permit Congress to regulate anything and everything. Couch potatoes beware.

The Necessary and Proper Clause to which Scalia resorts in Raich is, perhaps, the best resort for Obamacare defenders. Essentially, that clause permits Congress to regulate intrastate economic activities where necessary to make interstate commerce more effective. Yet the problem for Obamacare defenders remains: Inactivity isn’t activity.

Even if, as some Obamacare defenders maintain, the failure of some Americans to engage in commercial activity (purchasing health insurance) could arguably affect overall medical and insurance costs — and potentially frustrate a national health-care scheme — the fact remains that the aggregated impact of such failure is still the result of commercial inactivity.

If Congress can force individuals to purchase a product because the cumulative effect of such purchases will (purportedly) reduce health-insurance costs nationwide, then what prevents Congress from mandating the purchase of vitamins, gym memberships, green tea, or hand sanitizers? No doubt, if it can be shown empirically that an apple a day does keep the doctor away, then apple growers could lobby Congress to mandate the purchase of Granny Smiths.

Surely, Madison would approve.



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