Most liberal legal commentators and academics have been quite dismissive of the constitutional arguments against the individual mandate. The same cannot be said of the Supreme Court. This week’s oral arguments in Department of Health and Human Services v. Florida made clear that a majority of justices take these arguments very seriously, and may even strike down the law. This is heartening. The individual mandate represents an unprecedented assertion of federal power in that it is premised on the claim that the federal government may compel commerce in order to regulate it and that federal regulatory authority may reach each and every American without regard to the choices he makes. Such an assertion of federal power reflects neither the letter nor the spirit of the Constitution, and should be struck down for exceeding the scope of the federal government’s limited and enumerated powers.
Commentators aghast at the possibility that the Court may invalidate a key portion of President Obama’s signature legislative accomplishment have suggested that doing so will undermine the Court’s credibility. They suggest that a decision striking down the mandate would be another Citizens United or, worse, Bush v. Gore. Given the mandate’s unpopularity, this is a hollow threat. If anything, the justices should be more wary of another Kelo, of upholding an assertion of government power that most Americans find repugnant. This is not to suggest the justices should base their decision on popular opinion, for the Constitution should be their guide. It is, however, to suggest that the Court’s credibility is at risk when it fails to constrain unconstitutional assertions of government power.
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