Over at Volokh, Randy Barnet posted a link to his 2010 article on why the Individual Mandate is unconstitutional, and then commented upon it. The response by ObamaCare defenders has been quite interesting. Essentially, they seem to be claiming the following:
- Congress has the power to regulate the health insurance industry, therefore
- Congress has the right to order the industry to do anything that Congress wishes to order, and therefore
- It is within Congress’ Constitutional powers to give the rest of us any order that Congress chooses, so long as that order is necessary in order to make the regulation work
Now, assuming 1 to be true, I think that 2 follows. But I strongly disagree with 3.
If Congress had tried to pass ObamaCare with Community Rating and no exclusions for pre-existing conditions, it would have been a bad law, and it would have destroyed the health insurance industry, but it would not have been unconstitutional (at least, it would have been within Congress’ recognized Commerce Clause powers).
Or, Congress could have done the above, and included funding for the insurance companies to make sure they didn’t go bankrupt because of those rules. That would also have been constitutional.
However, neither was politically possible. So the ObamaCare supporters are forced to claim that Congress is free to chose any means that it wants to back up its regulatory schemes, and that any choice Congress makes is therefore “Necessary and Proper”.
Call it the “(politically) Necessary (is therefore) Proper” theory of the Constitution.
Following in their footsteps, I now propose the “Healthy Eating Act of 2013” (as proposed by Michelle Obama, once her husband doesn’t have to worry about getting re-elected):
- Congress hereby orders every person growing food (your private garden is, after all, part of interstate commerce via Wickard) to devote at least 50% of their growing space to Broccoli (we’ll call it the Healthy Eating Act of 2013).
- Because all the farmers will go bankrupt growing that much Broccoli, Congress therefore also orders every American to spend at least 40% of their food budget on Broccoli (they’re not being forced to eat it, they’re just being forced to buy it).
Given the claims by ObamaCare supporters, I don’t see how it could fail to pass muster.