Formalists vs. Pragmatists
The divide over the constitutionality of the individual mandate, reflected by the reaction to the Sixth Circuit’s decision yesterday, boils down to a difference over what “limited” means in the context of enumerated powers.
Proponents of the mandate take a formalistic view of enumerated powers. As long as there is a limit, then the authority of Congress is limited. The limit could be that Congress must act rationally (the view of Justice Breyer and Justice Ginsburg) or the one stated in Lopez and Morrison. They don’t care how strong the limit is.
Foes of the mandate look at Article One, Section 8 in functional terms. The limit to Congress’s powers must have teeth. Limited means “really limited.” Anything else is a sham that is inconsistent with first principles.
We’ll see how this plays out as the other courts of appeals chime in.