ObamaCare's Biggest Legal Weakness

The Hill's Sam Baker reports on the most glaring weakness in the legal defense of ObamaCare:

Even in the cases it has won, the administration has failed to answer a key question: If Congress has the power to enforce the insurance mandate, where does that power stop?

It’s known in legal jargon as a “limiting principle.” When courts evaluate a new application of Congress’s constitutional authority, they have historically wanted to see clear limits to those powers.

“The DOJ has to do a better job of answering, ‘What goes beyond your theory of federal power?' " said Ilya Shapiro, a legal scholar at the libertarian Cato Institute who opposes the insurance mandate. “They’ve been asked this in every court and they’ve never satisfied the court, even in the cases they’ve won.”

The 11th Circuit Court of Appeals — the specific case now before the Supreme Court — struck down the insurance mandate partially on the grounds that upholding it would open the door to a flood of regulation.

“Ultimately, the government’s struggle to articulate … limiting principles only reiterates the conclusion we reach today: There are none,” the court said in its ruling.

Baker is correct to identify the open question of what the government can't do if the mandate is constitutional as the strongest argument against the law. The administration has not merely struggled to articulate a limiting principle; it has conceded that under its defense of the individual mandate, there is no limit to the government's power under the Commerce Clause. As the D.C. Circuit Court ruling noted:

The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause.

This is a tough question for the administration to answer not merely because it's hard to imagine any limits on Commerce Clause power if the mandate is legal; it's also difficult because the administration has an incentive to avoid preemptively limiting its own power by drawing bright legal lines about what it can and cannot do. Regardless of their party affiliation, administrations tend to spend a lot of time developing legal arguments for why they have the power to do whatever it is they'd like to do; they tend to be somewhat less invested in figuring out how their legal arguments might limit their power to do something they might want to do in the future. 

Does this mean that the Supreme Court is likely to rule against the mandate? Not necessarily. Despite noting the lack of a limiting principle and acknowleding some "discomfort" with the potential for endless regulation under the administration's interpretation of the law, the D.C. Circuit Court ruled in favor of the law

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  • WWJGD||

    Man, why couldn't that picture be a Brumak, perfect setup for a Kagan joke.

    I'm sure their defense will eventually resemble something like "Trust us."+ "Top Men."

  • rather||

    " Ilya Shapiro, a legal scholar at the libertarian Cato Institute who opposes the insurance mandate."


    Just wondering if you're paid by the word, or if any legal scholars at the libertarian Cato Institute do not  oppose the insurance mandate. 

  • Ska||

    You asking Suderman or the dude he quotes?

  • ||

    Ask Sam Baker.

  • rather||

  • ||

    I use to try to limit the commerce clause...then i took an arrow to da knee.

  • ||

    Fus roh dah, mother-fucker.

  • Sparky||

                                                                   Zul Mey Gut

  • M'aiq the Liar||

    M'aiq is very practical. He has no need for mysticism.

  • Peter Suderman||

    I'm with the guild. Can you look the other way?

  • ||

    Of course, ObamaCare is pretty much a straight application of the SCOTUS cases on the Commerce Clause FDR.

    The problem isn't that ObamaCare breaks new ground. It doesn't, really. It just makes apparent that there hasn't been a limiting principle since Wickard.

    Since Wickard, the Court has ruled consistently that if you affect interstate commerce, Congress can regulate your economic life.

    The Court has been very clear that the only limits on the Commerce Clause is that the regulation has to be economic in nature (thus, no Commerce Clause authority to ban guns within X yards of a school).

    The Court has never required a threshold test that you be actively engaged in anything at all, much less an "activity" that is related in some way to the subject of the law at hand.

    Thus, we have thousands of pages of mandates on the books, right now, that require people to buy goods and services from private companies. And the Constitutionality of these mandates under the Commerce Clause is accepted without question.

    We don't have an ObamaCare problem. We have a Wickard problem.

  • ||

    We just have a problem.

  • ||

    The Court has been very clear that the only limits on the Commerce Clause is that the regulation has to be economic in nature (thus, no Commerce Clause authority to ban guns within X yards of a school).

    Hasn't the Congress been able to get around this by attaching some bullshit "economic" argument to bills?

    For instance, I have to research but I thought that after the gun ban around schools was struck down they rewrote it with some nonsense about how guns around schools has a negative economic impact.

  • ||

    I believe that hte court has rejected really obvious economic bullshit. The phrase that sticks in my head is "piling inference on inference."

  • ||

    There are lots of mandates that require people to buy goods and services. But here is the difference. Those mandates relate to activities that you voluntarily engage in. For example, if your are going to run an hazardous waste disposal business, you have to have so much liability insurance. That sucks. But I can avoid it by not going into that business.

    Obamacare is different because everyone is mandated. You come under the mandate not by engaging in some activity but by simply existing.

    For that reason it is beyond even Wickard and its progeny.

  • ||

    That's the argument, alright. And maybe SCOTUS will go that route (although doing so opens up whole cans of worms).

    SCOTUS, however, has never said the Commerce Clause is triggered by activities that someone voluntarily engages in. The language they have used is "affects interstate commerce."

    And it is quite easy to argue that just existing affects the interstate health care market. By existing in the United States, you are part of the risk pool for healthcare, and your participation in that risk pool has to be funded one way or the other. Bingo, there's your "affect" on "interstate commerce."

    Even that argument is better than it needs to be. You don't even have to get into the risk pool argument. Just by existing in the United States, you affect, and actively, voluntarily, participate in interstate commerce. Ergo . . . .

  • Matrix||

    Well, if ya don't like it, you can just stop existing. No one's forcing you to stay alive, except we've also made it against the law for you to kill yourself. So if you attempt and fail, we will have you committed.

  • Old Mexican||

    Even in the cases it has won, the administration has failed to answer a key question: If Congress has the power to enforce the insurance mandate, where does that power stop?


    "Counselor, can you answer the question posited to you: Where does the power of Congress stop?"
    "If it pleases the Court, I would like to defer that question to my co-counsel and colleage, Dr. Lex Luthor."

  • Brett L||

    "I'm guessing, 'it doesn't' is not the answer you want to hear?"

  • rather||

    If Romney wins he stated  “I hope we’re ultimately able to eliminate some of the differences [between Romneycare and Obamacare], and repeal the bad [of Obamacare] and keep the good.”


    I think he meant to change the name of the bill ;-)

  • ||

    Seeing a RomneyCare also has a mandate, I read this to mean the ROMNIAC won't be repealing the mandate.

  • ROMNIAC 5000||

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  • ||

    There will never be a repeal. The costs of doing so at this point are way too high, too many private businesses/congressmen would lose too much money. Hell, most of the bill was drafted in 93 by Chafee. It was a Republican wet dream back then, and Mitt went forward with it on his own.

  • sarcasmic||

    Constitution abridged:
    Congress has the power to write any law that is necessary and proper to regulate commerce and promote the general welfare.
    I fail to see any limitations at all.

  • sarcasmic||

    Carlin had his seven words.
    Congress has theirs.

  • protefeed||

    Congress has the power to write any law that is necessary and proper to regulate commerce and OR promote the general welfare.

    Fixed. Congress is OK with regulations of commerce that harm the general welfare.

  • cynical||

    Congress has the power to write any law that is necessary and proper to regulate commerce and promote the general welfare.

    Fixed.

  • pickle matrix||

    What game is that picture from?

  • Masturbatin' Pete||

    The Legend of Zelda: Skyrim Sword

  • cynical||

    lol

  • Jarad||

    Gears of war 3, and now I have to type some more words so my comment isn't marked as spam.

  • COMMERCE CLAUSE||

    COMMERCE CLAUSE!!!!!

    SMAAAASSSHHHH!!!!!

  • ||

    Wait, congress actually wants to know its limits on power?

    Which pill did we take, again?

  • 0x90||

    Buttered Popcorn Jelly Belly.

  • ||

    Dude no way man thats liek totally rocking I think. WOw.

    www.Privacy-Pros.tk

  • The Derider||

    If the most glaring legal weakness against the individual mandate is a slippery slope argument, I'm pretty sure the individual mandate will be upheld.

  • There is no "we"||

    Brutal buzzkill, Derider.

  • There is no "we"||

    The mandate is not a stand-alone piece of legislation. It is part of a huge, comprehensive regulatory enactment on the medical insurance industry.

    Whether the insurance mandate, or any mandate, would survive as a stand-alone pure commerce-connected enactment is highly doubtful.

    The "limiting principle" is probably that any such mandate has to be part of a comprehensive industry-regulating legislative enactment, and can't just be enacted all by itself based only on "some connection to interstate commerce."

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