Final Thoughts on the Eve of the Individual Mandate Decision

Over the last year, I have written an academic article, several amicus briefs, and countless blog posts and op eds about the individual mandate case. Whether I said anything useful or not is for others to judge. But, as a constitutional federalism scholar and one who had long argued for the need to enforce constraints on the scope of federal power, I felt I could not simply sit out what will surely be one of the most important federalism cases of my lifetime.

If the Court ends up striking down the mandate (which I continue to believe is a 50-50 proposition), it will be because the federal government failed to come up with a good explanation of how the law can be upheld without giving Congress nearly unlimited power to impose other mandates. Although both sides in the litigation have come up with numerous interesting points, I continue to think that this is the central issue, and the biggest flaw in the federal government’s position.

I would like to thank Eugene Volokh for inviting me to join the Volokh Conspiracy, without which I might not have been able to be involved in this debate to anything like the same extent. I would also like to thank the Washington Legal Foundation, several members of Congress (at the lower court level), and many of my academic colleagues (including several of my co-bloggers) for giving me the opportunity to represent them by writing amicus briefs on their behalf, including one at the Supreme Court level. It was a great honor to be your advocate in this important case.

Many have commented on the role of the Volokh Conspiracy in promoting the viability of this challenge. Co-blogger Randy Barnett deserves great credit for developing several of the most important arguments underlying the challenge, and especially for his December 2009 paper with Todd Gaziano and Nathaniel Stewart, which gave an excellent and very influential early explanation of why the individual mandate was unconstitutional, and how it was not authorized by previous precedent. Co-bloggers Jonathan Adler, David Kopel, and David Bernstein also played an important role in developing legal arguments and participating in the resulting public debate.

In my view, the VC was just one of many factors that made this challenge more viable than the mandate’s defenders initially expected. Perhaps our most important role was in challenging the oft-made claim that there was an expert consensus in favor of the constitutionality of the mandate. This helped undermine the emerging narrative that this case was a frivolous no-brainer that only people ignorant of constitutional law could support. But it is important to add that we were not the only legal academics who helped develop the case against the mandate, and discredit the myth of a consensus. Non-VCers who made important contributions include Steve Calabresi (Northwestern), Richard Epstein (NYU), Gary Lawson (BU), Steve Presser (Northwestern), Steve Willis (Florida), and others whom I apologize for omitting.

Outside the academy, enormous credit goes to David Rivkin for developing the core idea of the case against the mandate as far back as 1993. Until recently, I was not fully aware of his important role. I hope that he will get more of the recognition he deserves.

Considerable credit is also due to many of our adversaries in this debate, such as Jack Balkin, Brian Galle, Mark Hall, and Neil Siegel, among others. Their insightful efforts to develop the case in favor of the mandate helped us to develop a better case against it. As John Stuart Mill put it:

He who knows only his own side of the case knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side, if he does not so much as know what they are, he has no ground for preferring either opinion… Nor is it enough that he should hear the opinions of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. He must be able to hear them from persons who actually believe them…he must know them in their most plausible and persuasive form.

Mill’s point certainly applies here.

Finally, whatever the outcome, I hope that the mandate case and the resulting public debate have stimulated greater awareness of the need for enforcement of limits on the scope of federal power. Legal scholars and other experts have long debated the issue. But this case, I believe, has increased awareness among interested laypeople. Experts have an important role to play in constitutional debates. But ultimately the Constitution is too important to leave to them alone.

UPDATE: In the initial version of this post, I accidentally omitted Nathaniel Stewart, one of the coauthors, with Randy Barnett and Todd Gaziano, of the important December 2009 Heritage Foundation paper on the constitutional flaws with the mandate. I apologize for the error, which I have now corrected.

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