After the decision on Monday by U.S. District Judge Roger Vinson of the Northern District of Florida, which held that the ObamaCare law is unconstitutional, an anonymous White House official gave what so far appears to be the official Administration response:
Judge Vinson hypothesized that, under the Obama administration‘s legal theory, the government could mandate that all citizens eat broccoli.
White House officials said that sort of “surpassingly curious reading” called into question Judge Vinson‘s entire ruling.
“There’s something thoroughly odd and unconventional about the analysis,” said a White House official who briefed reporters late Monday afternoon, speaking on the condition of anonymity.
If that is the best they can do, then the Administration really has failed to take seriously, or to seriously consider, the fundamental constitutional question underlying the individual mandate.
For months, conservative writers have been asking a simple question — if the individual mandate to buy insurance under ObamaCare is constitutional, what are the limits of federal power over the U.S. citizenry. I asked a few questions along these lines here. I have not seen a single serious response from ObamaCare’s supporters.
Instead, we have someone who is not even willing to go on the record saying the question itself is “surpassingly curious” and “odd and unconventional.” In what way? Vinson was doing exactly the kind of analysis you do when considering fundamental questions of constitutional law — If position X is correct, what implications does that have for A, B, and C?
Or instead we get Adam Serwer jumping back into the fray (I responded to Serwer’s earlier defense of the individual mandate here) to declare that
If there’s one thing that’s clear from Florida Judge Roger Vinson’s polemical ruling against health-care reform, it’s that the fight over the Affordable Care Act is more a political battle than a legal one.
Actually, all Serwer can do is make a straw man caricature of Vinson’s legal arguments in order to misconstrue them as political, such as:
Vinson provides other explicit nods to his partisan inclinations. He winks at President Obama’s most visible public opposition, citing the original Boston Tea Party, and pulls out his originalist ouija board, declaring that James Madison and Alexander Hamilton would have opposed ratification of the Constitution had they known the individual mandate might someday become law. This tracks closely with conservative arguments that the individual mandate, once touted by the “far left” Heritage Foundation, reflects the sinister, un-American perversions of the liberal influence on public discourse rather than liberals scuttling their own policy instincts and adopting a conservative route to ensuring universal coverage.
That doesn’t really address the central question, does it? So Serwer tries on a few other analogies that don’t get the job done:
[U]sing the tax code to manipulate public behavior is nothing new. As libertarian writer Tim Lee wrote weeks ago, if courts want to overrule the individual mandate, they have to explain why “coercing people to buy health insurance is more objectionable than coercing them to have children, pay tuition, take out a mortgage, or install solar panels on their house.” Who knew we’d already been living in a tyrannical dystopia?
Each of the activities Serwer lists has economic impacts of the same sort as a decision not to buy health insurance:
Demand for consumer goods goes up if there are more consumers. Not having children results in fewer consumers. Therefore, the decision not to have children has economic consequences.
Demand for housing goes up if there are more home buyers. Renting results in fewer home buyers. Therefore, the decision not to buy a home has economic consequences.
Demand for fossil-fuel electricty goes down, and demand for solar panels goes up, if more people buy solar panels. Not buying solar panels results in less use of fossil-fuel energy and less demand for solar panels. Therefore, the decision not to buy solar panels has economic consequences.
The difference between Serwer’s tax incentive examples and the individual mandate, of course, is that in each of his examples the tax code is being used (I would say misused for most of them) to provide an incentive to encourage conduct; it does not mandate that people engage in conduct under threat of a penalty.
All that courts who want to “overrule the individual mandate” have to do is explain that the current tax code does not mandate that people must have children, mandate that people must go to college or pay college tuition, mandate that people must buy a house or take out a mortgage, or mandate that people must buy and install solar panels on their houses.
That is the difference — ObamaCare mandates that people must buy health insurance. Indeed, we already give tax incentives to employer-provided health insurance, and no one is arguing that such incentives are unconstitutional.
Finally, Serwer concedes the essential problem facing his side of the argument:
But Vinson’s partisanship doesn’t obscure or change the very real problem liberals have in offering a concise response to concerns that their interpretation of the Commerce Clause gives the government limitless power. The individual examples of apocalyptic “mandates” are easily dispatched one at a time [Where has Serwer done that?], but collectively the slippery slope argument has power. . . . Simply dismissing the “broccoli mandate” as silly or citing legal precedent won’t be enough to win that argument — liberals need to find a concise way to articulate both why the individual mandate is constitutional and why it doesn’t simply open the door to limitless government abuse, and thus far, they haven’t found one.
And so the question remains — if the individual mandate to buy insurance under ObamaCare is constitutional, what are the limits of federal power? It is increasingly clear that ObamaCare’s supporters do not have an answer.
Via the Volokh Conspiracy.