ObamaCare's Defenders Still Aren't Taking Challenges to the Mandate Seriously

When the Patient Protection and Affordable Care Act—a.k.a. ObamaCare—passed two years ago, the law's defenders dismissed constitutional challenges to its provisions as rubbish. Asked where, specifically, the Constitution granted Congress the ability to enact an individual health mandate, Nancy Pelosi, then the House Majority leader, responded dismissively: "Are you serious?"

But others, including several federal judges, did not dismiss the essential question so quickly. Now, a constitutional challenge to the law has gone all the way to the Supreme Court, which has set aside six hours of its time to hear oral arguments in the case, more than any case decades. And while many and perhaps even most legal experts and Court watchers still believe that the most likely outcome is for the court to uphold the law, there now exists real uncertainty as to how the Supreme Court will rule. The law's critics, it turns out, were quite serious, even if few took them seriously.

Yet the law's defenders continue to insist that challengers have no real case. In The New York Times, for example, former legal correspondent Linda Greenhouse explicitly invokes Pelosi's dismissal, and in the years since the law's passage, arguments against it have been "gussied up." The challenge, she writes , is "analytically so weak that it dissolves on close inspection. There's just no there there."  So what is there?  She writes, "I want to unpack the challengers' Commerce Clause argument for what it is: just words." As opposed to all those constitutional challenges that consist of crayon drawings?

Greenhouse notes that the challengers have repeatedly described the mandate to purchase health insurance as "unprecedented," does not dispute the description, and asks why it matters that the provision is unprecedented.

So there must be some problem with the Affordable Care Act other than "never before."

As I said, the rhetoric is powerful: "The Constitution protects and promotes individual liberty, while the mandate's threat to liberty is obvious." How so? "It is a revolution in the relationship between the central government and the governed." In what respect? Beyond regulating commerce, a power explicitly granted to Congress by Article I of the Constitution, the Affordable Care Act gives Congress "the power to compel individuals to enter into commerce" – a "fundamental" distinction with "breathtaking" implications.

This is the argument that persuaded the two members of the three-judge panel of the Atlanta-based United States Court of Appeals for the 11th Circuit who voted to invalidate the mandate. The government argues that, to the contrary, the "uncompensated consumption of health care" by those who are willfully or helplessly uninsured is itself an enormous economic activity. The uninsured don't exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don't want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not.

On the contrary, under the administration's logic about the interstate effects of the health insurance market, not purchasing broccoli would in fact affect the larger market for the vegetable. Just as most people will utilize some sort of medical care during their lifetimes, nearly everyone will move from place to place, and everyone will consume food of some kind. This necessitates decisions about what kind of food to eat, and how to get from one place to another. Choosing to walk, or use the bus, or buy a Toyota rather than, say, purchase a vehicle made by GM would certainly have some effect on the market for GM's automobiles. Buying carrots or arugula rather than broccoli would similarly have an effect on the broccoli market.

It is hard, then, to see what limits, if any, would exist on congressional power under the Commerce Clause should the mandate be upheld. This is not an entirely unusual conclusion. Harvard law professor Charles Fried, who believes the mandate is constitutional, told Congress last year that the same constitutional provisions that permit the mandate would also permit Congress to compel the purchase of broccoli or any other vegetable.  "Force you to pay for something? I don't see why not. It may not be a good idea, but I don't see why it's unconstitutional," he said. To accept this interpretation is to accept that there are no limits on the power granted to Congress on the Commerce Clause. That presents a problem for the mandate's defenders because the Constitution is a limiting document. The Obama administration, however, has consistently failed to explain what limits would exist under the Commerce Clause if the mandate were upheld. That failure is part of what ultimately led the 11th Circuit Court of Appeals to strike down the mandate. In its ruling, the Court noted that "the government's struggle to articulate … limiting principles only reiterates the conclusion we reach today: There are none."

Like many of the law's defenders, the administration's legal team sometimes seem exasperated with the task of defending the law at all. The administration has not entirely failed to answer questions about the limits of power under the Commerce Clause. It has merely failed to answer those questions satisfactorily, generally choosing to sidestep the issue by arguing that the health insurance market has unusual properties that invalidate any potential concerns about mandatory broccoli purchase requirements. One might describe the administration's insufficient responses as "just words." Indeed, it would be easy to conclude that "there's just no there there."