My Review of Einer Elhauge’s Obamacare on Trial

The Liberty Law Blog recently posted my review of Harvard Law Professor Einer Elhauge’s book Obamacare on Trial, which was possibly the first academic book on the Obamacare litigation published by a legal scholar since the Supreme Court issued its decision in NFIB v. Sebelius. Elhauge is a topnotch scholar, and his book makes some interesting points in defense of the constitutionality of the individual health insurance mandate. But it’s not as strong as it could have been had he been able to address some key issues in greater depth:

Harvard Law Professor Einer Elhauge’s book Obamacare on Trial is a useful and sometimes insightful statement of several arguments in defense of the mandate. It is impressive that Elhauge managed to get the book in print just a couple months after the Court’s decision came down on June 28, 2012. But, perhaps because of the haste with which it was published, the book fails to adequately address some key issues, and likely will not be persuasive to those not already inclined to agree with Elhauge’s conclusions….

Elhauge’s most distinctive contribution to the debate over the mandate was his repeated invocation of two 1790s laws that, he argues, provide precedents for upholding the individual mandate as an exercise of the commerce power: The 1792 Milita Act, which required militia members to possess muskets and other military equipment; and the 1798 Act for the Relief of Disabled and Sick Seamen, which required owners of American ships arriving from foreign ports to a withhold a part of their seamen’s wages and pay the money into a government-administered fund for the “temporary relief of sick and disabled seamen….”

This is an interesting thesis and Elhauge defends it well. But, ultimately, it flounders on the many clear differences between the two 1790s acts and the health insurance mandate….

Although Obamacare on Trial is a thoughtful defense of Elhauge’s distinctive take on the mandate litigation, it gives short shrift to several other important aspects of the case. For example, Elhauge argues that the mandate is authorized by the Necessary and Proper Clause as well as the Commerce Clause. But he fails to consider the point that a mandate authorized by that Clause must be “proper” as well as “necessary” for “carrying into Execution” other powers granted to the federal government in the Constitution. That is the key reason why the Necessary and Proper Clause rationale was rejected by a majority of the Court…

Elhauge also devotes little attention to the Tax Clause reasoning under which Chief Justice Roberts ultimately upheld the mandate. And he devotes almost none at all to the many arguments against that conclusion, including those endorsed by every lower court that considered the issue….

Overall, Obamacare on Trial is a thought-provoking contribution to the debate over the individual mandate case. But its limitations prevent it from becoming the definitive work on the subject, or even the definitive defense of the case for the mandate’s constitutionality.

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