Here is the best argument I’ve yet found in support of Obamacare’s constitutionality, by Einer Elhauge, a professor at Harvard Law School. It has two thrusts: mandates in 1790 and 1798 to provide health care to seamen, and a 1792 mandate (under The Militia Act) to purchase firearms.
The part of me that is a 2nd Amendment enthusiast savors this second line of argument, since I suspect those advancing it also support gun control, but have only now discovered the Originalist argument for the 2nd amendment: A “well regulated militia” meant the government insisted all able-bodied men own and operate a firearm, not that ownership could be limited to the states’ National Guards.
In response to Professor Elhauge, Randy Barnett writes:
The fact that these two examples have been so well discussed, debunked, and rejected explains why the Solicitor General cited neither in his oral argument when Justice Kennedy characterized this Commerce Clause mandate as unprecedented. Indeed, the fact that, over two years into this debate, these are the only supposed examples of such mandates on offer by defenders of the Affordable Care Act strongly supports, rather than detracts from, the claim that such mandates are unprecedented. One reason why supporters of the mandate were so surprised by the apparent skepticism of some of the Justices towards this claim of Congressional power may simply be that they are not all that familiar with the constitutional arguments that have actually been made by the challengers in their briefs or the analysis presented in the opinions of lower court judges…
Offering the militia duty as a precedent for the individual insurance mandate is revealing. For it highlights the fundamental question posed by this case: does every citizen of the United States serve at the pleasure of the Congress of the United States in the same manner as a draftee serves in the military? Put another way, does the Congress have the same power over individual citizens as the Captain or Commanding Officer of a militia company? As Justice Kennedy observed during oral argument, this would be to fundamentally alter the relation of the citizen to the federal government. If this claim of Commerce Clause power is upheld, and especially if were upheld using the Militia power as authority, we would no longer be considered citizens, but would instead be more accurately characterized as “subjects.” And that, in the words of the Vice President, would be a big . . . deal.
In a different post at The Volokh Conspiracy, Barnett takes on the charges of “politicizing” SCOTUS. From If the Republican Justices Do Not Agree With Me They Will Be Acting Politically:
I share (Larry Lessig’s) believe that the Court has been inconsistent in enforcing the enumerated powers scheme. Indeed, the reason why so many law professors on the left and right dismissed the challenge as frivolous is that they believed that the Court, in Raich, had abandoned any judicially-enforceable limits on the commerce power and — who knows? – they could still be proved right!
But here is the lesson Lessig wants us to draw from this: because the Court did not find limits in these “liberal” cases, the Court should no longer find any limits. That would be both constitutionally wrong and would contradict the arguments he made to the Court on behalf of limits on the copyright power. Unless, that is, he is saying that “Republican” justices should not invalidate “the most important social legislation advanced by the Democratic Party in a generation.” But any justice who actually thought this way would be acting entirely politically, thereby further undermining Lessig’s already shaky faith in the rule of law.
There is a better way for Lessig to reply to his students in the event the Court invalidates the mandate: sympathetically explain now, before the ruling, the legal arguments being made by the challengers, why these arguments prevailed in the Court of Appeals with a majority that included judges appointed by both Republican and Democratic presidents, and why they might have traction with at least some of the justices. But if he cannot do this, then he really has no choice but to conclude that “this Republican Court” truly is acting politically. Which only goes to show that, without coming out and saying so, this “more in sorrow than in anger” column is actually accusing some of the justices (but not others) — and Justice Scalia in particular since he is the focus of Lessig’s column — of acting politically should they vote the wrong way.
Ramesh Ponnuru discusses the related charge of “activism” in Obama v Court
To deploy the rhetoric of activism without regard to the underlying constitutional merits of the question in dispute makes no sense. If the right understanding of the Constitution requires a judge to set aside a statute, then setting it aside cannot be activism. Establishing that it is activism would require establishing first that the understanding of the Constitution that caused it to be set aside was not right. A mere showing that the law was useful, or well motivated, or wide-ranging in its effects, or passed by large margins, would do nothing to establish that the judge was wrong or activist…
Liberals are in their familiar posture, urging the Court to reach a congenial result for extralegal reasons. Conservatives, meanwhile, are being “activists” only if their constitutional argument has no merit. That is the consensus position of liberalism, expressed by legal liberals from Ronald Dworkin all the way down to Dahlia Lithwick. But their scorn is neither a legal argument nor anything that ought to impress conservatives.
The case (or at least a case) against the individual mandate is based on an inference from the text and logic of the Constitution. It runs as follows. The individual mandate is not a regulation of commerce; it is an attempt to force people to enter into a type of commerce. The administration attempts to deny this point by suggesting that everyone, by virtue of existing, is already part of the health-care market. Therefore, forcing all people to purchase insurance is merely regulating the way they participate in that market. It’s a contrived argument, and if accepted it would seem to authorize additional federal intrusions without limit…
Agree or disagree with this case, there is nothing radical, hypocritical, or necessarily activist about it. Agreeing with it does not require the Court to overturn a single precedent.