The Wall Street Journal also argues the unconstitutionality of the individual mandate and notes that the mandate is distinguishable from Massachusetts’ health care law and may violate a specific privacy provision of Florida law:
All human activity arguably has some economic footprint. So if Congress can force Americans to buy a product, the question is what remains of the government of limited and enumerated powers, as provided in Article I. The only remaining restraint on federal power would be the Bill of Rights, though the Founders considered those 10 amendments to be an affirmation of the rights inherent in the rest of the Constitution, not the only restraint on government. If the insurance mandate stands, then why can’t Congress insist that Americans buy GM cars, or that obese Americans eat their vegetables or pay a fat tax penalty?
The mandate did not pose the same constitutional problems when Mitt Romney succeeded in passing one in Massachusetts, because state governments have police powers and often wider plenary authority under their constitutions than does the federal government. Florida’s constitution also has a privacy clause that underscores the strong state interest in opposing Congress’s health-care intrusion.
That the individual mandate is unconstitutional, of course, would not completely resolve the issue because legislation of such length and complexity often contains a “severability clause” – a provision that if any portion of an act is found unconstitutional, the remainder will still stand. But ObamaCare apparently contains no such provision.
Moreover, as Processor Kopel argues, the individual mandate is at the very heart of the legislation. It all must be struck if the individual mandate is. To paraphrase his argument, ObamaCare would turn our private insurance companies into ultra-regulated public utilities (and probably bankrupt ones at that). But the scheme is utterly senseless in the absence of the individual mandate, and that mandate is not severable from the rest of the act.
If the government’s interest in your health care is so substantial a federal interest as to warrant compelling you to buy health insurance, one might see the necessity of such an extensive federal role in health insurance and the provision of health care, including the calorie counting mandate on restaurant menus. But if it is not, it is hard to see how the rest of the act can be constitutionally justified. (One wonders how the left would react if the federal government, having won the argument that this was all within its powers, began denying care to the obese, alcohol or drug users, the sexually promiscuous, or homosexuals on the ground that their behavior increased health costs to the government.)
Will the Obama administration stall in order for popular anger against the bill to cool down? Professor Ilya Somin of the Volohk Conspiracy argues that using the legal doctrines of standing and ripeness, the administration may stall court consideration until public rage has subsided, making repeal or revision by Congress more difficult:
I think eventually a case will arise that meets even the most rigid standing and ripeness standards. At the very least, it should be possible to bring such a suit once the individual mandate takes effect in 2014. By that time, however, public anger against the health care bill might have diminished, at least some parts of the bill will have been implemented, and it will be much harder to uproot. Thus, it is in the Obama administration’s interest to persuade the courts to postpone consideration of these issues for as long as it can.
Somin thinks the state cases might be hurt by the doctrine of standing, as the individual mandate is the strongest argument and doesn’t apply to the states. And he thinks the TMLC cases brought on behalf of individuals may be delayed on the ground of ripeness, as the mandate isn’t effective until 2014.
I think Professor Somin is wrong and too pessimistic about the state cases. ObamaCare interferes with billions of dollars of state programs and would require the states to spend a fortune to comply with new Medicaid eligibility rules. I think, in sum, the standing of the states is a less significant hurdle to justiciability than he does.
In any event, Somin thinks delay will work to the advantage of the defenders of the act:
[C]ourts are unlikely to strike down a major federal statute with strong political support. They might be more willing to act against one that is highly unpopular, as the health care bill is today. By 2014, public anger at the bill might diminish and a reelected President Obama might be much more popular than he is now, perhaps buoyed by a recovering economy. Of course it’s also possible that Obama will be defeated in 2012 and that his health care bill will be less popular in four years than it is now. On balance, however, I think that the defense is more likely to benefit from delay caused by procedural factors than to be harmed by it.
Professor Somin doesn’t say so explicitly, but these cases are particularly vulnerable to the subjective assessments of the various members of the Supreme Court, and with a likely vacancy during the course of Obama’s term, the situation becomes even more problematic.
In sum, I think that Professors Turley and Kopel are correct that the most constitutionally vulnerable portion of ObamaCare is the individual mandate and that it cannot be severed from the rest of the act. And I think Professor Somin is right that there is every reason to believe that the administration will utilize everything at its disposal to prevent or delay the resolution of the pending cases in the hope that public opinion will shift and that this will affect the final resolution in its favor. Although I suspect that the administration now “owns” health care in the public mind and rage at the act will only grow with each cut-off in benefits, increase in taxes, and difficulty in getting care.
As I said at the beginning, I prefer political resolution of this in any event. Register and vote out of office everyone who voted for this monstrosity, and support everyone who will work to gut or repeal it. A win at the ballot box is a better resolution than a hope and a prayer that the Supreme Court will do what it ought to and declare the act unconstitutional in sufficient time to prevent the destruction of our health care system and economy.