Linda Greenhouse writes in the "Opinionater" on-line column of the New York Times that the case against the constitutional validity of the Affordable Care Act (more widely known as Obamacare) is “so manifestly weak that it doesn’t deserve to win.” That’s surely an opinion, but how does she back it up? Mostly by noting that the attackers characterize the mandate as unprecedented. Greenhouse ridicules this argument by observing that there are lots of things that have been enacted for the first time and are surely constitutionally valid. True, but what she fails to address is that, precisely because it is unprecedented, the Court will make new law no matter what the outcome. There are, of course, respectable arguments in favor of its validity – the failure to have health insurance coupled with the near certainty that every person will need health care at some time in their life has a substantial impact on the interstate market for health care. But the precise point – whether Congress can compel every person to purchase a financial product from a private vendor – has never been addressed. Despite the usual invocations of Wickard, the mandate is not automatically controlled by that case. Farmer Filburn voluntarily entered the market for wheat, either by growing wheat or by his use of wheat for other agricultural purposes, or both. He became subject to the regulation by virtue of his participation in economic activity. The mandate, however, subjects every person to regulation by virtue of breathing. Only by claiming that mere existence is an “activity” that substantially affects interstate commerce can Wickard be dispositive. Maybe that’s so, but that question has never been addressed.
Now it may be that the mandate is a necessary and proper means to the valid end of regulating the delivery of health care and health insurance throughout America, but that argument is also debatable. What Congress has done, for the most part, is regulate the provisions that must be in health insurance policies. Whether requiring every American to buy one of these policies is “appropriate” or “plainly adapted” to that end is open to dispute. Of course, the argument in its defense is that requiring insurers to cover pre-existing conditions, and to provide comprehensive preventive care at no cost to the insured would make insurance ruinously expensive unless everyone is required to pony up for a policy. That sounds like it’s reasonably related to the end, but then Comstock roiled these waters a bit. Is the mandate a “modest addition” to federal regulations “that have existed for many decades”? Hardly. Does the mandate “reasonably extend[]” a “longstanding” federal system? Nope. Does it “properly account for state interests”? Not if you think that Massachusetts is free to adopt Romneycare and every other state is free to decline to do so. Of course Congress can pre-empt these state choices, but that begs the question – Congress’s power to do so is what is at issue here. Is the mandate “too sweeping in its scope”? The majority in Comstock provided no metric to judge this factor, but the mandate is pretty sweeping – if you breathe, you must buy health insurance. I have no idea whether the five members of the Comstock majority will heed their own analytical construct, but it surely raises some valid questions.
None of this appears in Greenhouse’s piece. She used to be an excellent reporter on the Court’s business. Now she's an "Opinionater."
Here is James Taranto's take on Greenhouse.
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