[With apologies to Orin.]
The more I participate in discussions on the constitutionality of the individual mandate, the more it feels to me like a replay of the debate over the limits of federal commerce clause power prior to the Supreme Court’s decision in United States v. Lopez.
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, 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, most informed observers were skeptical (if not incredulous) at the idea that the Supreme Court would take that step– only a handful of people saw the invalidation of the Gun Free School Zones Act as a realistic possibility; most saw it as extremely unlikely. 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. And in both cases, most informed commentators would expect the Supreme Court to side affirm federal power.
There are differences, of course. The debate over the Commerce Clause pre-Lopez was more for law geeks than the public: It concerned the likelihood the Court would affirm the limitations of the federal commerce power for the first time in over fifty years in a low-profile case few had heard of, let alone cared about, and it lacked the broad political movement that exists over the individual mandate. Yet then, as now, the litigation occurred at a time when limited government political arguments were on the rise and now, unlike before, serious academics and court watchers believe that, as a predictive matter, the constitutionality of the individual mandate is an “open question.” Nonetheless, I can’t avoid the sense of deja vu — but maybe that’s wishful thinking.