In an important recent speech, Senator Max Baucus claims that there is a broad consensus among legal scholars (that the individual mandate is constitutional. He claims that “those who study constitutional law as a line of work have drawn th[e] same conclusion” as congressional Democrats. Similar assertions have been made in parts of the liberal blogosphere. For example, Think Progress denounces Republican Senators Ensign and DeMint for citing only “right-wing think tanks” in support of their claims that the mandate is unconstitutional, and chides them for supposedly being unable to cite “a single judge, justice or reputable constitutional scholar who believes that health reform is unconstitutional.”
There certainly are prominent constitutional law scholars who agree with Baucus. But the claim that there is an overwhelming expert consensus on the subject is simply false. As co-blogger Jonathan Adler points out, Baucus mistakenly cited him as a scholar who agrees with the Democrats’ conclusions even though he actually believes that the mandate is not constitutional. The “right-wing think tank” study cited by Ensign and DeMint was actually coauthored by co-blogger Randy Barnett, one of the nation’s most prominent constitutional law scholars, and an expert on the original meaning of the Commerce Clause (the provision usually cited as authorizing Congress to impose the mandate). Richard Epstein of NYU and the University of Chicago is another prominent legal scholar (one of the ten most cited in the country) who believes that the mandate is unconstitutional.
I certainly wouldn’t put myself on the same plane as Jonathan, Randy, or Richard Epstein. But I’m a professional constitutional law academic, federalism and the Commerce Clause are among my areas of expertise, and I think the mandate is unconstitutional too.
It probably is true that more constitutional law scholars believe that the mandate is constitutional than believe the opposite. But this simply reflects the fact that most constitutional law professors, like most other academics, are overwhelmingly left of center. There are many controversial constitutional issues that split experts along ideological lines. In such cases, it is misleading to claim that there is an expert consensus merely because there are more experts on one side of a broader ideological divide than the other. Moreover, it’s worth noting that most of those left of center con law scholars who believe that the mandate is constitutional hold that view in large part because they believe that there are essentially no limits whatsoever to Congress’ ability to use its power to regulate “Commerce . . . among the several states” to control anything that has even a remote potential affect on commercial activity. If you believe that Congressional power is basically unlimited (except by constitutional individual rights), then the mandate becomes an easy case. That view, however, is seriously at odds with the text and original meaning of the Commerce Clause, for reasons that I discussed in my earlier post on the subject of the constitutionality of the individual mandate, and in this article.
UPDATE: I have edited the title of this post to make it clearer.