The more I participate in discussions on the constitutionality of the indivdiual mandate, the more it feels to me like a replay of last year’s discussions on the Privileges or Immunities Clause on the road to McDonald v. City of Chicago.
In both cases, the issue is whether the Supreme Court will adopt limitations on the scope of government power that are greatly desired by libertarians and supported from an originalist perspective, but that Supreme Court doctrine hasn’t shown any particular sign of adopting as a a matter of constitutional law. In both cases, much of the commentary in favor of the limitation seems aimed at fostering a sense of the legitimacy of those limitations with the hope that this will make it more likely for the Supreme Court to adopt them. In both cases, I find myself at odds with my co-bloggers on the likelihood that the Supreme Court would take that step — with my co-bloggers seeing it as a quite realistic possibility, and me seeing it as extremely unlikely. (In both cases, I saw it from the outset as a likely 8-1, with only Justice Thomas on board.) And in both cases, many commenters are extremely passionate about what they believe the correct constitutional answer must be — with commenters seemingly lining up in the same way on the two issues.
There are differences, of course. The debate over McDonald was more for law geeks than the public: It concerned the likelihood an argument would win in a known case, not even the result in that case, and it lacked the broad political movement that exists over the individual mandate. Still, I can’t avoid the sense of deja vu.