Experts debate whether the mandate is constitutional

A. Zarkov writes:

On December 22, speaking on the floor of the Senate, Max Baucus quotes legal scholar Jonathan Adler as defending the constitutionality of the individual mandate. But Adler repudiates this claim, saying Baucus quoted him out of context. Baucus also asserted the existence of a “broad consensus” among legal scholars to the effect that the mandate is constitutional, saying,

” … those who study constitutional law as a line of work have drawn th[e] same conclusion [as Congressional Democrats]”

But law professor Ilya Somin at George Mason University writes,

“There certainly are prominent constitutional law scholars who agree with Baucus. But the claim that there is an overwhelming expert consensus on the subject is simply false.”

Adding to the chorus of dissent, law professor Orin Kerr piles on, writing,

“I would ask a question: Is there a consensus among constitutional scholars about the constitutionality of anything?”

Then we have this legal memo authored by Randy Barnett who is Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center. Barnett was counsel on the Supreme Court case Gonzales v. Raich. This case is often cited by defenders of the mandate. Barnett doesn’t mince words—he calls the mandate, “unprecedented and unconstitutional.” Some consensus.

Liberalism has so thoroughly permeated academia and the media that Democrats evidently feel safe in constantly referring to a non-existent consensus. They do this with global warming all the time, and they get away with it. We have only the Internet to protect us from the tyranny of misinformation.

LA replies:

Adler’s reply to Baucus does not make me hopeful, but the opposite. Adler acknowledges that under existing precedent the mandate would be constitutional:

So, while Senator Baucus correctly quoted my belief that an individual mandate is likely constitutional under existing precedent, he omitted my belief that existing precedent is unduly expansive.

And others in the thread give arguments showing it could be seen as constitutional.

I had been under the impression that the mandate was so far out (sorry for the Seventies phrase) that there was not the slightest color of constitutionality about it. I was wrong. If it is constitutional under existing precedent, then, even though existing precedent is totally wrong, it does have color of constitutionality; and if it has color of constitutionality, there is a basis for the Court to approve it, and if there is a basis for the Court to approve it, the Court could very well approve it.

Yes, there are decisive constitutional arguments against the mandate, such as that if the mandate is constitutional, then there is no limit on Congress’s power, and since the very purpose of the Constitution is to place limits on Congress’ power, an interpretation that gives Congress unlimited power must be false.

But that’s of no practical help to us, because, I repeat, if the other side has any color or pretence of constitutionality for this, no matter how specious it may be, then they will go with it and we are done.

LA continues:

However, notwithstanding what I just said, even if the Court found some grounds to call the mandate constitutional, the fact that the mandate means unlimited power of Congress over every person in America is so far outside the American experience that it would be the end of America as we have known it. It would be the official end of the idea that we have a limited government under the Constitution. I can’t visualize such a radical event happening. Either the government and courts will shy away from it, or, if they don’t shy away from it, there will be an uprising by the people against it. For the Congress and the Court to push this through, and for the people to accept it, would really be the end of America. Yes, that could happen; but I can’t visualize it happening.

A. Zarkov replies:

Yes, Adler thinks the mandate might be constitutional under Raich, but he also thinks Raich was wrongly decided. However, the other professors of constitutional law—Barnett, Somin, and Kerr—think the mandate is unconstitutional even under Raich. The whole point of the various threads is we don’t have a consensus of experts, and even more to the point, there isn’t a consensus for anything with the possible exception of Brown. It looks to me that the main argument for the mandate relies more the “Necessary and Proper” clause in the Constitution than on Wickard. This argument gets somewhat technical and strikes me as pretty weak. For example, Professor Volokh at UCLA makes argues along necessary-and-proper lines, but without much enthusiasm. Still there are professors who insist Wickard alone is enough. I’ve read them, and they don’t get around the need for some kind of activity.

To cheer you up a little, remember there’s an argument for making almost anything constitutional, no matter how absurd. The Democrats will grab on to anything to justify their cause.

A. Zarkov continues:

You write:

“It would be the official end of the idea that we have a limited government under the Constitution. I can’t visualize such a radical event happening. Either the government and courts will shy away from it, or, if they don’t shy away from it, there will be an uprising by the people against it. For the Congress and the Court to push this through, and for the people to accept it, would really be the end of America. Yes, that could happen; but I can’t visualize it happening.”

I agree. Upholding the mandate gives Congress plenary police power, which is something the framers manifestly did not want. That’s why they created a federal government limited to enumerated powers. The mandate is such a radical step that I have serious doubts the current court wants to go this far because it’s not necessary. If Congress wants universal health coverage, they can fund it through taxes. The mandate provides political cover for Obama and the Democrats—it really has no function beyond that. The Supreme Court knows this. Not only that, the whole bill is extremely unpopular even with the left. Why would the court uphold universally unpopular law to help out one party? Seeing how things are unfolding, I now think the decision would likely be 5-4 against the mandate. Again it looks like Kennedy gets to decide.

Posted by Lawrence Auster at December 24, 2009 01:30 PM | Send