Savage tries to assure us:
Many constitutional-law experts ... predict that even a conservative Supreme Court would uphold a federal requirement that individuals buy health insurance. The justices have said that Congress has wide latitude to regulate economic activity, and health insurance qualifies as that.That, for you nonlawyers, is a discussion of whether Congress has an enumerated power to support the requirement. The power referred to is given by the Commerce Clause. That says absolutely nothing about whether it might violate the constitutional rights of the individual.
Although the mandate to buy insurance may well face a constitutional challenge, "I don't think this is a close call," said Erwin Chemerinsky, dean of the UC Irvine law school. He said that individuals' refusal to buy insurance could have an effect on the market, and the Supreme Court has said that Congress may regulate actions that affect a market.
As an example, [Chemerinsky] cited the court's decision four years ago that upheld federal restrictions on home-grown marijuana in California even though two women who used medical marijuana at home argued that they did not intend to buy or sell it.Yes, and the Supreme Court, after resolving the Commerce Clause question, remanded the case to consider whether there was a substantive due process right to use marijuana when it is medically necessary. That claim of right ultimately failed, but the point is that it's not enough for Congress to have an enumerated power to pass a law. It must also avoid violating individual rights. Savage's quoting of Chemerinsky about the commerce power makes it hard for the average reader to see what is an elementary legal matter — one that liberals ordinarily like to spotlight.
A 6-3 majority said Congress may "regulate activities that substantially affect interstate commerce," and at least in theory, the home-grown marijuana could have been sold in the illegal drug market.
Moreover, the Commerce Clause question is quite a bit more complicated than Dean Chemerinsky makes it sound. The marijuana growers were engaging in an activity — making a product for which there is a big, regulated market. In this new case, we'd have Congress regulating people for their inaction. What other case is like that? Congress can "regulate activities that substantially affect interstate commerce"? Where's the activity? It's inactivity! And Supreme Court cases have limited Congress's power where the activity in question is noncommercial. Isn't the failure to buy insurance noncommercial?
A legal challenge to the healthcare mandate may be several years away. To challenge this requirement in court, a taxpayer would have to face a penalty, and the pending legislation does not phase in the penalties until after 2013.Now, wait. The economics of the entire restructuring of health care is balanced on this individual mandate. I don't know how well-balanced it is, but the economics are shot to hell without the individual mandate, right? What happens if it turns out that the individual mandate is unconstitutional? Does the whole system go down?
Under Section 255 of the bill ("Severability"):
If any provision of this Act, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of the provisions of this Act and the application of the provision to any other person or circumstance shall not be affected.In other words, by its own express terms, if part of the Act is struck down, everything else survives. So if we find out, some day, that the individual mandate to buy insurance is unconstitutional, we're still stuck with all the other parts of the plan. Then what happens?
Has anyone promoting this bill even attempted to calculate the economics with the individual mandate excised? Are we going to have the whole lumbering system cranking into operation for years before we find out whether the the individual mandate is unconstitutional? Or is that the scheme? The individual mandate is too big to fail, and the courts will cave.