The constitutional line of propriety runs between proscription and prescription. None of the New Deal cases, whatever one thinks of them, moves that line. And the mandate falls on the wrong side of it.
– Ramesh Ponnuru in The Impropriety of Obamacare
Well said. Ponnuru also makes a good point about transparency in government:
Congress cannot keep the costs of its ideas for health-care policy off the budget by simply ordering individuals to pick them up. Liberals have noted the supposed irony of the fact that a single-payer program would survive the constitutional scrutiny now being brought to bear on the mandate. The constitutional rule at issue nonetheless limits government by forcing Congress to confront the costs of any such scheme.
If progressives had simply come clean and said they intended to raise taxes and ration care they’d have had a smaller Constitutional problem. But they couldn’t do that, could they?
He also quotes Michale Greve (author of The Upside Down Constitution):
Wickard, despite its preposterous analysis, was rightly decided: grant Congress the power to limit the interstate supply of wheat and other commodities, and the power to suppress local evasion follows directly, albeit depressingly. On the limiting side, neither the Gun Free School Zones Act in Lopez nor the civil remedies provision at issue in Morrison was plausibly related, let alone necessary, to anything having to do with interstate commerce. Thus, even on very deferential judicial premises, the decisions were right. Raich turns out to be a hard case: is the prohibition against the mere possession of marijuana — neither commerce nor interstate — nonetheless “necessary” to a legitimate Commerce Clause objective and a set of interstate transactions? Plainly, Congress may suppress the shipment of marijuana and other drugs into states that do not want them. But the effect of local marijuana cultivation and consumption, under state-imposed restrictions, may be sufficiently remote to warrant the inference that the federal prohibition was simply targeted at suppressing policy competition among states (which differ greatly with respect to their “medical marijuana” policies). Justice Scalia deferred to the judgment of Congress; Justice Thomas believed not a word of it and therefore dissented. Reasonable minds will differ about the outcome and the appropriate level of judicial scrutiny, but at least they will differ over the right question.
But necessity is not the end of the analysis. Assuming that the individual mandate in Obamacare is “necessary” for carrying into execution the power of Congress to regulate commerce among the states, is it “proper”? The structure of the Constitution suggests a negative answer.
Federal laws generally presuppose some affirmative private act as a predicate for compelling further private actions; and the constitutional provisions that suggest a federal authority to “commandeer” private parties are few, institutionally cabined, and calculated to ensure the operation of the government’s own institutions (such as the armed forces and the jury system) — not, as under [Obamacare], to protect the profitability of private corporations. The form in which the government exercises its authority counts a great deal in the “proper” analysis.