This morning the House Judiciary Committee is holding a hearing on the constitutionality of Obamacare’s individual mandate. The witnesses will be Prof. Randy Barnett, Prof. Walter Dellinger, and Virginia attorney general Ken Cuccinelli.
I expect Barnett and Dellinger to repeat much of what they said during the Senate’s recent hearing on the same subject — though I suspect that Professor Dellinger is somewhat relieved that Sen. Mike Lee, who took him to school during the Senate hearing, will not be joining his House colleagues for this one.
One of the most interesting aspects of the Senate hearing was the mostly unsuccessful attempt by Obamacare’s defenders to articulate some sort of limiting principle on Congress’s power under the Commerce Clause. Once you concede that Congress can take this unprecedented step, it gets pretty hard to argue that the Constitution really is a structural limit on the national government’s power. As Speaker Boehner argued in the brief I had the privilege of filing:
The Individual Mandate itself is not a permissible exercise of an enumerated power. Congress’s power to regulate interstate commerce does not allow it to compel passive individuals to engage in economic activity. Indeed, in more than 220 years since Congress first convened, it has never even attempted to claim such power until now.
Republican Members of the House Judiciary Committee will probably emphasize that basic point, but I hope their colleagues, including those who are not lawyers, will echo it. Two federal judges in the two most serious lawsuits brought against President Obama’s signature policy “achievement” have found the activity/inactivity distinction controlling, and the American people deserve to hear that this law that they so dislike is about to be swallowed by the quicksand upon which it was built.