Akhil Reed Amar: How to Defend Obamacare
For anyone who may have missed this article amidst all of the media circus this week, this one is a must read. Akhil Reed Amar provides the most succinct and cogent explanation of why the arguments against the constitutionality of the mandate are unfounded. Although it is clear that Donald Verrilli was not up to the task of defending the law, it should be noted that the brief submitted by Principal Deputy Solicitor General Neal Katyal contains a much stronger defense of the mandate, more in line with Amar's analysis. (Both Amar and Katyal served as clerks for Justice Stephen Breyer.)
The most striking characteristic that distinguishes Amar's analysis from the analysis of the Republican Justices is that Amar's argument is firmly grounded in the Constitution's text and structure, as well as precedent. If you scrutinize carefully the comments of Roberts, Alito, and Kennedy, you will notice that none of their arguments are based on anything concrete within the Constitution. The Republican argument assumes, without providing any justification, that the Constitution embodies some free-standing principle of economic libertarianism. None of their comments pointed to any particular textual provision that might justify their intuitions. Too many Republicans approach the Constitution from this undisciplined holistic perspective, relying on their gut feeling about what the Constitution stands for rather than analyzing what the document actually says and means.
Although Justice Scalia's hyper-partisan attack on the Affordable Care Act failed to maintain even the appearance of impartiality, Scalia to his credit did at least point to two possible parts of the Constitution that might invalidate the provision. First, he noted that the mandate might not be considered "proper" within the meaning of the Necessary and Proper Clause. This argument is exceedingly weak in that the Courts have always maintained a strong policy of judicial deference to the judgments of Congress in construing the clause. It also neglects the fact that the particular means chosen for the mandate, an income tax penalty, could be accomplished without any substantive distinctions in its application by employing Congress' powers of taxation. Second, Scalia pointed to the principle for construing congressional powers stated in the Tenth Amendment ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.") as possible grounds for invalidating the mandate. This argument fails when you consider that the regulation of the national health care market presents an interstate free-rider problem that the individual states are not able to address. An income tax penalty scheme represents no encroachment into any traditional police powers of the states.