One more thing . . .
A key part of my analysis of the individual mandate’s constitutionality, as expressed in this paper that has not yet been published, is that there is no sound federalism argument for reading Congress’s power narrowly in the health care context (as opposed to things like education or family law) because health care is not a traditional state concern as that phrase is used in Lopez and Morrison. Medicare proves that proposition to my mind, although you can cite plenty of other authority as well.
The Eleventh Circuit’s contrary conclusion on this point cannot withstand scrutiny. Frankly, that portion of the opinion reads like something that an advocate would say. (“I know that I have to say that health care is a traditional state concern to come under the precedents, so here’s my best shot.”).
Here’s another problem. On Page 113, the Court frames one of the questions as “whether Congress’s exercise of its commerce authority affords sufficient and meaningful limiting principles.” The key word here is “meaningful.” I submit that there is nothing in the case law that says that the limits on the commerce power must be meaningful (whatever that means). Limited means not unlimited. Lopez and Morrison already state limits to the Commerce Clause. Unfortunately for critics of the individual mandate, the boundaries that they describe (non-economic vs. economic) do not prohibit what Congress enacted last year.
Now I do think that a lower federal court could write a perfectly defensible opinion striking down the individual mandate that goes something like this: (1) all of the Supreme Court’s Commerce Clause precedents involve activity; (2) this statute does not; and therefore (3) we cannot uphold this. In the case of the Supreme Court, they could say “We will not expand our Commerce Clause cases to include inactivity. We’ve gone this far and will go no farther.”
The problem for the Supreme Court is that there is no reason to create this distinction (well, except that it kicks the Obama Administration in the teeth). A clear line is great, but this is not a “rules-of-the-road” situation. There must be some rationale for establishing the line. And I still don’t know what that is. There is no individual liberty interest because the states can regulate inactivity. There is no states’-rights interest because health care is already regulated to the hilt by the federal government. What other justification is there?
My bottom line is that I think the individual mandate should be repealed, but it’s not unconstitutional.