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December 25, 2009
Is the mandate to buy health insurance constitutional?
Ilya Somin writing at Volohk Conspiracy fleshes out what is sure to be a court challenge against the constitutionality of individual or business mandates to purchase health insurance. His point - there is no "consensus" among constitutional scholars on the issue
In an important recent speech, Senator Max Baucus claims that there is a broad consensus among legal scholars (that the individual mandate is constitutional. He claims that "those who study constitutional law as a line of work have drawn th[e] same conclusion" as congressional Democrats. Similar assertions have been made in parts of the liberal blogosphere. For example, Think Progress denounces Republican Senators Ensign and DeMint for citing only "right-wing think tanks" in support of their claims that the mandate is unconstitutional, and chides them for supposedly being unable to cite "a single judge, justice or reputable constitutional scholar who believes that health reform is unconstitutional."Somin believes that because there are more left wing scholars, there is a false sense of consensus on the issue. And what's more important, he writes that "most of those left of center con law scholars who believe that the mandate is constitutional hold that view in large part because they believe that there are essentially no limits whatsoever to Congress' ability to use its power to regulate "Commerce.'"
There certainly are prominent constitutional law scholars who agree with Baucus. But the claim that there is an overwhelming expert consensus on the subject is simply false. As co-blogger Jonathan Adler points out, Baucus mistakenly cited him as a scholar who agrees with the Democrats' conclusions even though he actually believes that the mandate is not constitutional. The "right-wing think tank" study cited by Ensign and DeMint was actually coauthored by co-blogger Randy Barnett, one of the nation's most prominent constitutional law scholars, and an expert on the original meaning of the Commerce Clause (the provision usually cited as authorizing Congress to impose the mandate). Richard Epstein of NYU and the University of Chicago is another prominent legal scholar (one of the ten most cited in the country) who believes that the mandate is unconstitutional.
I certainly wouldn't put myself on the same plane as Jonathan, Randy, or Richard Epstein. But I'm a professional constitutional law academic, federalism and the Commerce Clause are among my areas of expertise, and I think the mandate is unconstitutional too.
Somin's view - that the "text and original meaning of the Commerce Clause" is limited puts him at odds with the majority. How this will play out in the Supreme Court will depend on when the case challenging the mandates arrives. If Obama gets to name one or two more jurists before then, any challenge will probably fail.
But if a case were to come before this current court, all bets are off.
Hat Tip: Clarice Feldman via Instapundit.