Paul L. Caron

Thursday, June 30, 2011

Orentlicher: The Constitutionality of ObamaCare Under the Taxing Power

David Orentlicher (Indiana-Indianapolis) has posted Constitutional Challenges to the Health Care Mandate: Based in Politics, Not Law, 159 U. Pa. L. Rev. PENNumbra ___ (2011), on SSRN. Here is the abstract:

While critics of the individual mandate to purchase health care have mounted a vigorous attack on its constitutionality, Prof. Mark Hall skillfully dismantles their claims in his article in the University of Pennsylvania Law Review [Commerce Clause Challenges to Health Care Reform, 159 U. PA. L. REV. 1825 (2011).]

Mandate opponents have erected a Potemkin village of logic that has a facade of credibility but ultimately is deeply flawed. As Hall observes, one might reject the mandate on the basis of plausible readings of the constitutional text or in terms of 19th Century and early 20th Century Supreme Court opinions. However, critics cannot square their view with the Court’s understanding of constitutional doctrine and theory over the past 70 years.

In this response, I highlight important points in Hall’s analysis and extend his argument with additional considerations. For example, the individual mandate should be upheld not only on the basis of the Commerce Clause power, as Hall argues, but also on the basis of the taxing power. If the constitutional arguments against the mandate are weak, how can we explain the unexpectedly high level of uncertainty about the mandate’s validity? The answer to this question lies in politics, not law.

In particular, there is good reason to think that public anger about the economy is being vented in the form of opposition to the healthcare legislation. In effect, the public may be saying that Congress should have been using its Commerce Clause power to improve the economy, not to reform the health care system. In this view, the decision by Congress to divert the Commerce Clause power to pass an individual mandate is a metaphor for Congress diverting its attention away from the economy. Once the economy recovers, public opposition to the health care law may well dissipate.

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This blurb is a good example of why I have ceased taking much of the academic left seriously. There's nothing new here except to attack the motives of conservative scholars which even most liberals accept as genuine. So what's the point of writing it?

Posted by: mike livingston | Jun 30, 2011 6:30:39 AM