Is Partisanship Responsible for the Success of Constitutional Challenges to ObamaCare?

Legal eagles who've taken up the task of defending ObamaCare's individual mandate have made a habit of asserting, in a tone that frequently suggests rolled eyes, that the requirement to purchase health insurance or pay a fine is obviously constitutional, and that only a flagrant partisan could believe otherwise. As David Rivkin and Lee Casey, two of the lawyers who've argued against the mandate in court, point out in The Wall Street Journal, House Minority Leader Nancy Pelosi's first reaction when someone asked about the law's constitutionality was, "Are you serious?" Since then, a number of the law's defenders seem to have decided that there really aren't any serious objections—just people conveniently willing to toe the party line. Leading the pro-mandate condescension parade today is UC Irvine School of Law dean Erwin Chemerinsky in the L.A. Times:

Not surprisingly, the Supreme Court on Monday agreed to decide the constitutionality of the individual mandate in the Affordable Care Act, the healthcare reform package passed in 2010. Under current constitutional law, this should be an easy case to predict — the law is clearly constitutional. But what complicates the decision and makes the result unpredictable is whether the justices will see the issue in terms of precedent or through the partisanship that has so dominated the public debate and most of the court decisions so far.

When the Obama administration formally requested that the Supreme Court hear the case in 2012, I predicted that if any part of the law is struck down, the Obama administration will blame the loss on excessive judicial partisanship. Chemerinsky appears to be doing some of the advance work for this potential talking point.

Hopefully it's on a strictly volunteer basis, though, because his confidence in the mandate's obvious legality isn't very convincing. It's not just that several judges have already ruled against the mandate; it's that the mandate raises constitutional questions that don't have obvious answers—and that the Supreme Court has never clearly decided.

Chemerinsky is right when he says that "the Supreme Court has repeatedly held that under the commerce clause, Congress may regulate economic activity that, taken cumulatively across the country, has a substantial effect on interstate commerce." The substantial effects doctrine has many problems, but the Supreme Court has relied on it fairly consistently.

Yet as Cherminsky also says, courts weighing the merits of the health insurance mandate must also answer the following question: "Is Congress regulating economic activity?"

This is a good question to ask. But far from making the case for the mandate, it suggests the constitutional arguments against the law should not be quickly dismissed.

At bare minimum, it does not seem obvious that not purchasing health insurance should qualify as economic activity. If doing nothing at all with regard to a privately sold product is nonetheless a form of regulable activity, then what wouldn't qualify? And if that's the case, then why bother with asking the question at all? If both activity and inactivty both qualify equally, then it would seem there is not only no difference, but no possibility that the question will ever be answered in the negative. It's not a test worth having if there is only ever one correct answer. But maybe that's just my partisan bias speaking.

Chemerisnky's case is familiar but not terribly reassuring:

[Opponents of the law] contend that people who do not wish to purchase health insurance are inactive and that Congress cannot regulate inactivity. They argue that it is unprecedented for Congress to require an economic transaction and that, if Congress can require purchasing of health insurance, there is no stopping point in terms of what Congress can force people to buy.

The key flaw in this argument is its failure to recognize that literally everyone at some point will use the healthcare system. Children must be vaccinated to attend school. If a person contracts certain communicable diseases, doctors must report them and the government can require treatment. If a person is in a car accident, the ambulance will take him or her to the nearest emergency room and medical care will be provided.

Therefore, even though it appears that some people are abstaining, in fact everyone is already making an "affirmative" active economic choice to purchase health insurance or to self-insure. The Affordable Care Act regulates this economic activity by imposing a penalty on those who choose to self-insure in order to create a system in which all can have access to the healthcare system.

Of course, everyone will consume food, go places, and wear clothes as well. Are mandates requiring the purchase or usage of foods, or cars, or clothing also constitutional?

The government won't say. Indeed, in defending the mandate, the administration has not been able to define any clear limits on congressional power under its theory of the Constitution's Commerce Clause. As Circuit Judge Lawrence Silberman pointed out in a ruling upholding ObamaCare's mandate last week:

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.

The concession that the provision is novel is important, if only because it indicates that the provision has not previously been put to the test. That alone should deflate the easy certainty of legal defenders like Chemerisnky. To put it another way: Does it really require rank partisanship to be skeptical about the merits of a never-been-tried legal requirement that regulates doing nothing based on the argument that doing nothing is in fact a form of activity?