Why the Individual Mandate Is Doomed

02/10/2011 11:03 am ET | Updated May 25, 2011

The Supreme Court has never ruled Congress has authority under the Commerce Clause to impose an economic mandate on the general population, and until it passed the Patient Protection and Affordable Care Act (PPACA) last year, Congress had never claimed it is so authorized. But a majority of American taxpayers will be required to buy health insurance or pay a penalty starting in 2014 -- if the new law isn't overturned or revised sooner (as I predict it will be).

Other issues are also raised in the nearly two dozen lawsuits challenging the individual mandate, but the heart of the matter concerns defining the outer limits of Commerce Clause power.

Although some legal scholars unconvincingly insist the mandate's constitutionality has been established by prior rulings, others see it as the unprecedented assertion of power it plainly is.

It seems most experts agree the scope of the Commerce Clause was originally much narrower than it is now. There is no such consensus, however, on how the various expansions of power should be interpreted, or where the lines are now drawn.

If you're interested in a brief primer on the history of the Commerce Clause, check out this amusing "conversation" between Erwin Chemerinsky (Dean. UC Irvine School of Law) and John Eastman (Former Dean, Chapman University Law School), and then meet me under the video screen -- but only if you're ready for a serious relationship:

Did you know without hearing the professor say so that Congress can make us buy cars? Chemerinsky's little bombshell was cited by U.S. District Judge Roger Vinson in his January 31 opinion striking down the mandate. Another federal judge did the same thing in December after two others had ruled the mandate is constitutional.

From the outset of this saga, President Obama and his groupies have claimed the lawsuits are frivolous, and they keep trying to dismiss the plaintiffs -- who include the attorneys general of 28 states -- and other mandate opponents, as kooks or partisans. The propaganda effort is failing spectacularly, as the consensus now among pundits and legal experts is that the case is headed to the Supreme Court where it will be decided (one way or the other) by a 5-4 vote.

UCLA law professor (and fellow HuffPost blogger) Adam Winkler is one of over 100 legal scholars who issued a statement last month claiming the PPACA "rests on sound, long-established constitutional footing." It was yet another attempt to win the day by emphasizing how many more experts embrace Obamacare than reject it. That boast -- as George Mason University law professor and Volokh Conspiracy blogger Ilya Somin has persuasively argued -- is an exaggeration. It's also irrelevant, as I told Winkler when we spoke.

I also spoke with Somin and Wake Forest University law professor Mark Hall who, in a widely praised new paper (see the kudos here, here and here), opines: "How tightly the commerce power should be policed depends in part on how great is the risk of abuse." That's a reference to the slippery slope argument, which is that if Congress has the authority to compel us to purchase health insurance, it must also have the authority to force us to buy products and services related to transportation, food, housing and the like. I asked Hall why he thinks it's unlikely Congress will impose other economic mandates on us if the insurance mandate turns out to be constitutional. His answer: "I just have to assume there's not a strong risk."

Hall also said it's "hard to imagine" a statute as essential to a broader regulatory scheme as the individual mandate is to the PPACA. But as Somin correctly countered, all that we know about how corporations and special interest groups influence Congress, should make it easy to envision such legislation.

Fortunately, governmental intrusion into our lives is constrained not by Hall's imagination but by how the Supreme Court interprets constitutional limits. Only a few months ago the Court applied a 5-part test in United States v. Comstock when it ruled that certain dangerous inmates may be kept in federal custody even after they have served their sentences. One of the considerations was that the challenged statute was narrowly tailored. By contrast, the health insurance law is anything but narrow. Although the Court might not apply the same test to the individual mandate it used in Comstock, there is no reason to assume the justices will see the statute's "special" relationship to the rest of the legislation as a sufficient limit on congressional authority.

Progressives who always preferred single-payer insurance to Obamacare, are now arguing the PPACA should be jettisoned not only because it's a lousy bill, but because the mandate might not even be constitutional. Norman Solomon, the author and political activist who plans to run for the seat currently held by Congresswoman Lynn Woolsey if she calls it quits as expected, notes: "The healthcare law is in danger of falling apart as a sort of Rube Goldberg contraption with severe design flaws due to political machinations that had very little to do with sound public policy."

According to Politico's Manu Raju, the mandate's constitutionality is also being questioned by Democratic Party centrists including Sens. Joe Manchin of West Virginia, Ben Nelson of Nebraska, Claire McCaskill of Missouri and Jon Tester of Montana.

Democrats and other mandate proponents would have withdrawn their support sooner if they hadn't concluded the lawsuits are politically motivated. But if an argument is valid legally -- as the argument against the mandate is -- it doesn't become invalid just because the plaintiffs or their cheerleaders have bad motives. When it comes to how a constitutional question should be decided, motives are completely irrelevant, and as more and more people consider the merits, it's inevitable that enthusiasm for the mandate will continue to fade on all fronts.

So it might be self-defeating for the Obama administration to oppose Virginia Attorney General Kenneth Cuccinelli's request for an immediate review by the Supreme Court. By the time the case gets to our highest court, the mandate could be so unpopular that the notion of deferring to Congress will strike the justices as laughable. On the other hand, the Great Constitutional Scholar from Chicago and his Justice Department lawyers probably need more time to come up with a limiting principle the Court would be likely to endorse.

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