Thursday, April 29, 2010

Is the individual mandate constitutional?

Randy Barnett has an interesting analysis of whether or not the institutional mandate is constitutional. He notes that the defenders of the mandate have shifted their defense of the mandate by talking about it as a tax, not as being done under the powers of Congress to regulate interstate commerce.
A"tell" in poker is a subtle but detectable change in a player's behavior or demeanor that reveals clues about the player's assessment of his hand. Something similar has happened with regard to the insurance mandate at the core of last month's health reform legislation. Congress justified its authority to enact the mandate on the grounds that it is a regulation of commerce. But as this justification came under heavy constitutional fire, the mandate's defenders changed the argument—now claiming constitutional authority under Congress's power to tax.

This switch in constitutional theories is a tell: Defenders of the bill lack confidence in their commerce power theory. The switch also comes too late. When the mandate's constitutionality comes up for review as part of the state attorneys general lawsuit, the Supreme Court will not consider the penalty enforcing the mandate to be a tax because, in the provision that actually defines and imposes the mandate and penalty, Congress did not call it a tax and did not treat it as a tax.
He traces through the legal history to cast strong doubt on whether the Supreme Court would allow the defenders of ObamaCare to switch and say that the mandate was a tax when they didn't insert any language making it a tax in the actual bill.

It's still a long shot to think about the Supreme Court ruling that the mandate is unconstitutional. However, there are a lot of legal scholars who think that, although the Supreme Court has stretched the meaning of the Commerce Clause beyond all original recognition, it is still highly questionable that they will regard the failure to buy something as part of interstate commerce. All the other interpretations of what the Commerce Clause means are related to someone actually taking some action, not inaction. As David Kopel wrote,
“[F]ederalism was the unique contribution of the Framers to political science and political theory,” wrote Justice Kennedy. United States v. Lopez (1995) (concurring). To declare Obamacare to be unconstitutional, the Court may take into account the importance of preserving the unique contribution of Our Federalism. In doing so, the Court need not overrule a single precedent, nor need the Court cast into doubt any of the creations of the New Deal or the Great Society. Instead, the Court may simply choose not to invent unprecedented extensions of the interstate commerce power and the tax power.

From federal district court to the Supreme Court, the judges and justices who decide to leave constitutional doctrine exactly as it is today will decline to validate the unprecedented exercise of power in Obamacare. The last fourteen years of the Supreme Court determination to defend our precious constitutional system of dual sovereignty gives reason to hope that the courts will apply the existing law rather than make up new law, and that the insurance mandate will be declared unconstitutional.
What is also key is that, if the mandate is thrown out, the rest of the bill falls. There is apparently no severability clause within the law which would mean that, if the mandate was unconstitutional then the rest of the law would also be unconstitutional. Kopel continues,
Over two thousand pages of laws certainly contain items (e.g., restaurant menu labeling, tanning taxes) that theoretically could have been enacted separately from the mandate, and might be considered severable. But the main provision of Obamacare–turning private insurance companies into ultra-regulated public utilities–makes no sense without the individual mandate; it would not have been enacted without the mandate, and it is not severable.
The mandate provides the basis for funding the rest of the policy.

However, the gimmicks and unlikely promises to cut Medicare spending within the law indicate that the Democrats didn't really worry too much about the actual cost of the program, just the appearance of pretending that the program wouldn't expand the deficit. Now that it's law, it enters all the other unsustainable and unfunded liabilities that politicians seem so blithe about. If the mandate did get thrown out, they might argue that the rest of the law should remain and we'll just have to enact some major tax to pay for it, something they probably are planning on arguing for at some point anyway.