Lots of diaries about the pending action by the Supreme Court on the HCR law make for interesting reading. As an attorney, my interest is what standard applies to judge the consitutionality of the HCR law. With few exceptions, legal scholars agree that under the long-standing precedents, Congress has broad powers to rule over matters affecting interstate commerce, and since FDR's day, courts have deferred to Congress' judgment, so long as there is a "rational basis" for the decision. Under that standard, the HCR law would seem to be constitutional, in every significant sense. Some of the Justices -- especially Justice Kennedy -- seemed to suggest that was not the correct question to ask, however, and to suggest there was some "uber-law" that regulated the relationship between the Federal Government and its citizens, such that even if an act that was otherwise a legitimate exercise of the Commerce Clause powers might still be objectionable because it "went too far." This is the "broccoli-mandate" issue: Is there some innate restriction on the Governmetn's ability to compel citizen action, where there is an otherwise legitimate exercise of the Commerce Clause (and BTW, why is everyone ganging up on broccoli? It tastes good, is a pretty color, and has an architectural quality sadly lacking in other vegetables).
But I disgress...
My point is that while conservative justices continually asked the HCR proponents whether there was a principled limit on the Government's power, they face the other side of the question when they write their opinion: If the HCR oversteps, what standard would they propose as setting the correct constituional limit on the Government's Commerce Clause power? If the Government cannot mandate citizens to purchase health insurance, how can it mandate citizens to buy autormobiles with low emissions or high fuel economy? How can it compel citizens to spend extra money for drugs and food that have been inspected as pure and safe to consume? Or to fly in aircraft that are required to comply with airworthiness rules and participate in a complicated and expensive air traffic control system?
In all these cases, the current law restricts the rights of free-loaders and compels citizens to make certain choices (indeed, the HCR preserves choice, it does not eliminate it). But I truly question how the conservative justices will be able to come up with a standard that would strick down the HCR without also striking down most other exercises of the Federal Government's Commerce Clause powers. The really interesting question will be what standard the conservatives ennuciate that would allow them to strike down the HCR, without undermining all the post-Lochner jurisprudence. They just may do that -- see Citizens United -- but personally, I suspect they know they cannot come up with an alternative standard and will uphold the law, including the mandate (and can we please start calling it a "choice," not a mandate!).
What do you think?
