After reading my earlier post, Jonathan Chait was good enough to respond. Here is how he begins:
The legal merits of Hudson’s ruling, which seem to be totally daft, are themselves piggybacked upon a policy argument which is itself highly unpersuasive at best. The political argument, endorsed by Friedersdorf, maintains that the individual mandate represents some dramatic new imposition of Congressional power. Congress’s power may have grown over the years, the argument holds, but the individual mandate represents some new frontier of intrusiveness. It is forbidding an activity (or inactivity) that is more personal and less intertwined with the economy as a whole than almost any previous regulation. It is not dramatically different than a law requiring people to eat broccoli.
Actually, I am endorsing a somewhat different argument, and I apologize if I misstated my position or was less than clear about it. It isn’t that I think the individual mandate is an imposition of Congressional power more dramatic than anything seen before. It is merely one example of the longstanding Congressional tendency to justify all manner of things – gun free school zones, legislation to prevent violence against women, the ability to grow marijuana in my backyard, etc. – under the banner of the commerce clause. Where I come down on these cases has nothing to do with policy arguments: on the merits, some seem like good ideas to me, and others seem like bad ideas, but none strike me as attempts to regulate interstate commerce unless that task is so broad that it imposes no meaningful limit on the scope of federal power. (Speaking of which, I’d still like to see Chait and Kevin Drum answer Radley Balko’s question.)
Friedersdorf is correct to point out that some libertarians who are not partisan Republicans have endorsed this argument as well. In my view this is a group of people who are deeply inclined to support limited government, and have latched onto an argument in favor of limited government that has gained a political foothold without subjecting the merits of the case to serious scrutiny. They think the case is about drawing a new line against the expansion of Congressional economic power, when in fact the line is far behind the old one.
I actually agree that the individual mandate doesn’t constitute an obvious high water mark when it comes to legislation passed under the umbrella of the commerce clause. But surely Chait understands how constitutional challenges work. Most people who care about the principle at stake don’t get to choose the partisan blowhards on the same side of the issue, let alone the case that someone with standing files, that winds its way through the courts, that results in a favorable ruling, and that has a chance of making it to the Supreme Court. The individual mandate may not constitute a high water mark as legislation, but if it ends up being a SCOTUS test case, the majority opinion that results might well entrench a precedent that goes farther than any before it, and determines the future of the commerce clause for generations. To me, Linda Greenhouse is right: the issue at stake is whether the Rehnquist Court’s jurisprudence is going to be killed in infancy or mature into a more expansive body of law.
Noah Millman also responded to my earlier post.
…it is unquestionably within the power of Congress to tax, and the mandate could have been structured as a tax-plus-voucher scheme that would have had exactly identical effects. Does that mean that the law is constitutional? If not, then the reason is entirely some notion of precedent – that if this form of the law is Constitutional then other mandates that could not obviously be structured as a tax (“From this day on, the official language of San Marcos will be Swedish. Silence! In addition to that, all citizens will be required to change their underwear every half-hour. Underwear will be worn on the outside so we can check. Furthermore, all children under 16 years old are now… 16 years old!”) would also be acceptable. If that’s the argument that’s being made, then why are we arguing about the health insurance mandate as such being a threat to freedom?
First of all, the judicial precedent in this case won’t necessarily apply only to future commerce clause cases that involve mandates. Second, people are talking about the mandate as a threat to freedom for all sorts of reasons, many of them nonsensical. There are two arguments that I regard as plausible. One is that the mandate is particularly troubling because it requires payments to powerful corporations that spent millions of dollars lobbying the very people who wrote and passed health care reform. Call it the wonko-industrial complex. What if it gets out of control?! But that isn’t my position. It’s the second argument that I am making: it’s the jurisprudential precedent and the implications for the commerce clause and federalism generally that matter.
That argument can be taken too far, as when Mike Farmer writes:
Why wouldn’t a decision to uphold the mandate signal decisively that we are no longer free? If government can basically regulate any area of our lives, isn’t this justification for strong language and a clear delineation between freedom and tyranny?
A precedent that theoretically allows something bad to happen is not equivalent to living under the bad thing itself! People living under tyranny is something we have seen in this world. It looks like present day North Korea, The Soviet Union, East Germany, the American South during slavery, the Cubans under Fidel Castro, etc. It doesn’t look like the United States post-mandate, nor does it look like Denmark or France or other liberal democracies where citizens enjoy more freedom than the vast majority of people in human history. And I find it hard to believe that Mike Farmer thinks he is no longer free.
But the health insurance mandate is a “threat to freedom” in the limited sense that the precedent it’ll set if upheld by the courts further weakens federalism, which is a check on the power of our national government, and one among several ways that the Framers chose to safeguard our freedom. Other free countries rely on different mechanisms, many of them successfully. We’ve got the Constitution, and I am inclined to prefer adhering to it closely even when it makes designing policy initiatives somewhat less convenient.
If there’s a question, it’s a question of Federalism: is the mandate in question something that the Federal government can impose, or can it only be imposed by the states. The usual way we’d answer that question is by looking at whether the object of regulation – health insurance – is, in fact, part of interstate commerce, which it very plainly is.
That isn’t the way I’d approach the question. Though marijuana is part of interstate commerce, I do not think the commerce clause gives government the power to prevent me from growing the stuff in my yard. Weddings are part of interstate commerce: a friend of mine read bridal magazines published in New York, had a dress that was made out of state, a photographer that crossed state lines to attend, dozens of guests that bought airplane flights to be there, and foodstuffs that surely came from farms near and far. Is the federal government empowered to mandate that everyone purchase wedding insurance in case something goes wrong on the big day? I submit that they are not so empowered. (I cannot at this moment articulate my own preferred commerce clause test. Probably there is someone at The Volokh Conspiracy that has already done so?).
…we have a Bill of Rights is precisely that the anti-Federalists worried that there was no restriction on Federal power built into the original Constitution. But that doesn’t make the Constitution meaningless, because the Constitution also outlines the separation of powers – what the respective roles of the President, the Congress and the Judiciary are, and how they interact.
Two points in rebuttal:
1) The tenth amendment implies that the pre-Bill of Rights constitution establishes a federal government of enumerated powers.
2) The separation of powers, properly understood, must encompass federalism, which separates power between the federal government, the states and the people.