Strengthening Constitutional Self-Government

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Health Care

The Least Dangerous Branch

With all the ruckus of the presidential election, two wars and an economic recession, America has been preoccupied with the President and Congress over the past year or so - allowing the Supreme Court to enjoy a period of relative peace and quiet. Most of the fervor surrounding judicial issues has arisen from the trial court level, reflecting Obama's decision to try terrorists in civil courts rather than military tribunals.

Tocqueville observed, however, that political controversies inevitably turn into legal controversies in America. WaPo is reporting that opponents of the health-care bill are likely to bring immediate challenges in federal courts as to the constitutionality of the bill's individual mandate clause (which requires that people purchase health insurance or pay a fine of 2% or more of their income).

Conservatives make two primary arguments against the mandate. The first is that an individual's inactivity -- in this case, the failure to buy health insurance -- does not qualify as interstate commerce, and thus Congress does not have the power to regulate it under the Commerce Clause. The second is that the financial penalty the law would impose goes beyond Congress's ability to lay and collect taxes.

Randy Barnett has an article at The Heritage Foundation advancing this opinion. The article begins by quoting a 1994 memorandum from the Congressional Budget Office:

A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.

I have doubt as to the viability of such a claim in the Supreme Court. As is customary, the result may depend upon the swing vote of Justice Kennedy. (For a noble attempt to dispel the prevailing notion that Kennedy's centrism is the result of a lack of actual judicial philosophy, see Frank Colucci's newly released Justice Kennedy's Jurisprudence: The Full and Necessary Meaning of Liberty).  

When questioned as to Congress' constitutional authority to impose individual mandates, majority leader Nancy Pelosi responded by repeatedly asking in mocking disbelief, "Are you serious?" While I have reservations that even the Robert's Court can reign in the unlimited power of Congress under the Commerce Clause, I expect that Pelosi's arrogance reflects something in her character and statesmanship other than a profound sense of juridical certainty.

Liberal justices on the Supreme Court are responsible for discarding judicial deference in favor of an expansive judicial review of legislative policies. It would be ironic if this activist trend were to derail the liberal centerpiece of the Democrat's health care reform. 

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