Here are 2 YouTube videos of my recent interview for the Healthcare Channel. In the first, I discuss the unconstitutionality of the individual health insurance mandate under the Commerce Clause and the tax power. Those who want a close examination of how the mandate runs afoul of current Commerce Clause doctrine should look at my co-authored paper for the Heritage Foundation here. What cases like NLRB, Wickard, Lopez, Morrison, and Raich actually say, and do not say, is an important part of the argument for why the legal precedents do not support this factually unprecedented claim of power. On Monday, I defended my Heritage paper’s analysis of these cases at a faculty workshop at Georgetown and it held up well before a polite but unsympathetic audience of law professors and students. At this workshop I also presented a new critique of the tax power argument in light of Supreme Court decisions discussing the scope of that power that I plan to write about very soon. But the almost immediate shift from the Commerce Clause to the taxation power to defend the mandate betrays a weakness in the persuasiveness of the Commerce power justification. Think about it. If the claim of power under the Commerce Clause was really as powerful as some suggest–usually without offering any discussion of the relevant cases–there would be no need so quickly to change the subject to the tax power.
In this second video, I discuss other current or potential challenges to the health insurance bill, such as the issue of infringing state sovereignty and commandeering state governments. Although I have not studied the issue as closely, I think the commandeering objection made by the state AGs is stronger than I imagined it would be. In particular, this theory relies on previous cases upholding conditions on spending when the conditions are not “coercive.” In the key case of South Dakota v. Dole, for example, the Court stressed that only 5% of federal highway funding was made conditional on raising the drinking age to 21. In this bill, as I understand it, 100% of Medicaid funding is made conditional on the states doing a host of activities requiring legislation. Could the Supreme Court consider placing onerous new conditions on 100% of the funding of a massive program upon which the states have come to rely over decades be considered the “coercive” “commandeering” of state legislatures and executives? Stay tuned.
When Congress does something this new and this sweeping, it should not be surprising that it may run afoul of several lines of existing Supreme Court doctrine–not to mention (because it cannot be mentioned in polite company) several clauses of, ahem, the written Constitution.