From Dave Kopel:
Let’s begin by getting rid of the red herring that questioning the constitutionality of Obamacare requires denying the constitutionality of the New Deal and the Great Society. Orin asks:
In your view, which of the following federal programs or agencies are constitutional?
(a) Social Security
(b) The Federal Trade Commission
(c) Medicare/Medicaid
(d) The Securities and Exchange Commission
(e) The new Health Care mandateIn my view, (a), (b), (c), and (d), are constitutional, but (e) is not. My answer is based on using “constitutional” in the normal sense of the word as it appears in most modern public dialogue. That is, “Should a judge who accurately applies existing precedents, and other sources of legal authority, find the law to be constitutional?” This is the question that federal district judges and circuit court of appeal judges will have to answer, since they have no authority to reject Supreme Court precedent. The Supreme Court can change its own precedents, but for for purposes of argument, I am presuming that the Supreme Court would not overrule any precedents. …
People are free to argue all they want, on the basis of aspiration, original meaning, or anything else, that items (a) through (d) on Orin’s list are unconstitutional. If these people persuade enough of their fellow Americans, perhaps the Court might eventually narrow or overturn some of the precedents which uphold (a) through (d). However, my argument is based on the law as it actually exists today, and it presumes the continuing validity of all the New Deal and Great Society precedents.
Some parts of Obamacare, such as the calorie labeling requirement for restaurant chains, appear to be solidly within the scope of existing precedents. (At least based on the discussion I’ve heard thus far.)
In contrast, the individual mandate to purchase health insurance is not. It “is unprecedented in our jurisprudence.” Romer v. Evans (1996). …
No prior case stands for the proposition that Congress may use the interstate commerce power to order persons to buy a particular product, or may use the tax power to punish people for choosing not to purchase a particular product.
Read the whole post: Destroying the Constitution’s Structure is not Constitutional.
