Senator Hatch & Stuart Taylor on the Constitutionality of an Individual Health Insurance Mandate

On Friday, Senator Hatch gave a major speech on the floor of the Senate on the unconstitutionality of a federal health insurance mandate that readers may find very interesting. Although the Senator favorably mentions my Heritage legal memorandum and introduced it into the Congressional record, his presentation of the constitutional problems with a mandate is both distinctive and powerful.

For a contrary assessment, readers may also be interested in Stuart Taylor’s reporting of the debate in the National Journal in which he contends that The Supreme Court Should Defer to Congress on Requiring Americans to Buy Health Insurance. Here is part of his take:

I don’t see a clear winner in these dueling arguments about commerce-clause precedent. I also think that it would be far better for Congress simply to increase taxes to finance the subsidies, which — while politically toxic — would raise no constitutional problem.

But I am nonetheless fairly confident that the justices would, and should, defer to the political branches here. The alternative would be to strike down the president’s signature initiative — something that no Court has done in more than 70 years, for good reason.

I know and highly respect Stuart Taylor, and always find his writings insightful, but I think he unintentially quotes a post of mine here on Volokh somewhat out of context. Here is what he quotes me as saying along with his response:

In an earlier exchange on the same blog, a colleague’s [Orin’s] suggestion that the justices would not pick a massive fight with a still-popular president backed by a large congressional majority provoked this biting retort from Barnett.

“So what ‘constitutionality’ really comes down to is whether five justices have the, er, nerve to strike down a popular act of popular Congress…. But how about a not-so-popular act of a not-so-popular Congress by the time the case reaches the high court? What if the Repubs take back the Congress by then? … And if, to assess its constitutionality, we have to calibrate the popularity of the law and/or lawmaker … does this tell us anything about the constitutional law game in our fair Republic?”

That’s too cynical a spin, for my taste, to put on the justices’ undoubted sensitivity to public opinion and political considerations.

But, of course, in my exchange with Orin, I was rejecting this “cynical” head counting approach to constitutionalism, and then countering by raising the question about whether the prediction of “constitutionality” based on counting votes would come out the same way if a statute if it turned out to be politically unpopular. I certainly was not endorsing this way of approaching constitutional questions, and seriously doubt that Taylor thinks I was. Still, his National Journal readers may read him to be suggesting otherwise.

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