How strong is the case for the constitutionality ObamaCare’s individual mandate? So strong that Slate legal columnist Dahlia Lithwick barely feels the need to need to make a case at all.
How does she know it’s so strong? Because Democratic House Minority Leader Nancy Pelosi once made a derisive remark in response to early concerns about the law’s constitutionality. So of course it must be constitutional, and obviously so.
Really. This is her argument:
That the law is constitutional is best illustrated by the fact that—until recently—the Obama administration expended almost no energy defending it. Back when the bill passed Nancy Pelosi famously reacted to questions about its constitutionality with the words, “Are you serious?” And the fact that the Obama administration rushed the case to the Supreme Court in an election year is all the evidence you need to understand that they remain confident in their prospects. The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic. Nor does it amount to much of an argument.
Derision does not amount to much of an argument either. Rather than illustrate the law’s constitutionality, Pelosi’s snide remark illustrates how eager the law’s defenders have always been to dismiss questions about its constitutionality, as well as their consistent unwillingness to take challenges to the law seriously. That the law's political proponents refuse to take those challenges seriously, however, does not necessarily make them unserious.
Lithwick also cites a New York Times essay by Linda Greenhouse arguing that the law is clearly constitutional. Lithwick writes that Greenhouse makes the case for the law's constitutionality "more eloquently than I can." Yet as I noted yesterday, Greenhouse's primary point is that the arguments against the law are so weak that they barely need to be addressed, and that the law is therefore obviously constitutional.
In asserting the inherent strength of the constitutional argument for ObamaCare’s mandate, the law’s defenders are revealing the weakness of their own case.