Since we're all waiting for the Supreme Court to give a verdict on Obamacare, and since I'm going back through possible ways the justices could rule, here's another argument that hasn't gotten nearly enough attention. Forget whether the Commerce or Necessary and Proper clauses justify the mandate. Congress has the power to levy taxes. And the mandate is a tax. Remember, the mandate is not truly a mandate to obtain health insurance, although critics and even supporters frequently describe it that way.
AT THE END OF MARCH, when Solicitor General Donald Verrilli appeared before the Supreme Court to make the case for the Affordable Care Act, he was widely perceived to have choked. When he approached the podium in the packed courtroom, the stakes could not have been higher. Verrilli was defending the Obama administration’s central domestic achievement, a reform that had consumed the White House for the better part of the president’s first term.
Put aside all the questions about regulating interstate commerce and whether declining to buy health insurance constitutes “inactivity.” Is the Obamacare mandate a tax? And, if so, does that make it constitutional? In a new piece for the Atlantic, Jack Balkin argues that the answer to both questions is plainly “yes”—and wonders why that argument hasn’t loomed larger in the court cases challenging the Affordable Care Act. It’s a very good question.
At the conclusion of yesterday’s oral arguments in Arizona v. U.S., the case that will decide the fate of Arizona law SB 1070, Chief Justice John Roberts said, “Thank you, Mr. Clement, General Verrilli.
Jack Balkin has delved into the legislative history of the provision of the 14th Amendment requiring the federal government to honors all debts, which the Obama administration may invoke if Congress refuses to lift the debt ceiling. He has a fascinating follow up post replying to some objections. He's arguing that the prospect of a debt default ceiling is extermely similar to the precise scenario the prvovision was designed to stop.
Kevin Drum is skeptical that the Obama administration would really be within its rights to ignore the debt ceiling: Maybe I'm missing something here, but it strikes me that this doesn't come close to implying that the debt ceiling is unconstitutional. What it really suggests is merely that the public debt is the only untouchable part of the federal budget. Jack Balkin delves into the legislative history and shows why the 14th Amendment has a provision guaranteeing the debt in the first place.
The big liberal find in the battle over the constitutional status of the individual mandate and, with it, the Affordable Care Act has been a law from way back in 1792: the militia act, which more or less required Americans to own guns and other items needed to serve in militias. I think the ACA, including the individual mandate, is clearly Constitutional, but I’m agnostic about whether the militia act really tells us anything about what the framers would say about the individual mandate.
Some state lawmakers in South Dakota think they have a clever gimmick for showcasing the unconstitutionality of the Affordable Care Act's individual mandate: They're proposing a law that would require all citizens to buy a firearm for self-defense. Explains one of the lawmakers: Do I or the other cosponsors believe that the State of South Dakota can require citizens to buy firearms? Of course not.