New York Times Forum: “Is the Health Care Law Unconstitutional?

The New York Times’ online forum Room For Debate has a remarkably fair and balanced discussion of the constitutionality of the health care bill by Jack M. Balkin (Yale Law School), Abbe R. Gluck (Columbia Law School), David B. Rivkin and Lee A. Casey (counsel in the Florida lawsuit), James F. Blumstein, Vanderbilt Law School, and me. We each had 350-400 words. Here are mine:

The smart money is always on the Supreme Court upholding an act of Congress. And the smart money is right until the day it is wrong — as when constitutional law professors confidently predicted the court would uphold the Gun Free School Zones Act in 1995 and the Violence Against Women Act in 2000.

The professoriate was shocked when both laws were held unconstitutional because they exceeded Congress’s power under the Commerce Clause.

The individual mandate goes far beyond these previous acts. Congress has never before mandated that a citizen enter into an economic transaction with a private company, so there can be no judicial precedent for such a law. Telling someone how they must do something is one thing; commanding that they must do something is entirely different.

Imagine if Congress ordered the majority of American households without a firearm to buy a handgun from a private company, and punished their failure to do so with an escalating monetary fine, which it labeled a “tax.” Would the supporters of the health insurance mandate feel the same about the constitutionality of such a measure?

If the health legislation’s supporters were really so confident in their Commerce Clause theory, they would not immediately change the subject to the Tax Power. Nor would Democrats have dressed up their mandate to look like a tax.

Yet, here too, the Supreme Court has never upheld a “tax” penalizing private citizens who refuse to enter into a contract with a private company. The Constitution distinguishes between taxes and what the Eighth Amendment calls “fines.” Had the Tax Power been broad enough to allow Congress to fine any individual action or failure to act, wouldn’t Congress have discovered this power years ago.

Now that it has, supporters are betting there won’t be five votes on the court to thwart a popular act of Congress. Another safe bet.

But what if the bill turns out to be supremely unpopular? What if one or both houses of Congress flip parties because of it? What if majorities in Congress favor repeal but are blocked by a Senate filibuster or a presidential veto? Still as confident about five votes?

But first things first. Does the text of the Constitution authorize this exercise of power? No, it doesn’t. Has the Court ever before upheld this claim of power? No, it hasn’t. Can the challengers get this mandate invalidated? Yes, they can.

You can read the others here.

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