Last week, the Sixth Circuit upheld the constitutionality of ObamaCare in a 2-1 decision, producing three opinions running a total of 64 pages. To understand the issues fully, you also need to read Judge Roger Vinson’s erudite 78-page opinion holding ObamaCare unconstitutional. Or you could watch this fascinating debate at Harvard featuring three of America’s best constitutional lawyers.
But there is an even quicker way to focus on the central constitutional issue: read the panel discussion from Sunday’s This Week, in which George Will posed a challenge that none of his fellow panelists could meet.
Will asked them a question to test if they thought there is any significant limitation on congressional power under the Commerce Clause:
WILL: … Let me ask the three of you. Obviously, obesity and its costs affect interstate commerce. Does Congress have the constitutional power to require obese people to sign up for Weight Watchers? If not, why not?
First up was Richard Stengel, editor-in-chief of Time magazine, whose cover story about the Constitution the prior week was titled “Does It Still Matter?” Here is the key part of his answer:
STENGEL: … Everything having to do with health care does cross state boundaries. Even that notion of the Commerce Clause as regulating among the states is a kind of antiquarian idea. The government can ask you to do things. … It asks us to pay our taxes. It asks us to register for the draft. It asks us to buy car insurance if we want to drive our car around. … It’s unconstitutional if the Supreme Court decides it’s unconstitutional. …
WILL: Well, does Congress have the power to mandate that obese people sign up for — do they have the power to do this?
STENGEL: I don’t know the answer to that.
Georgetown Professor Michael Eric Dyson then gave a convoluted response supporting Stengel’s non-answer. That produced this colloquy, set forth below in full:
WILL: Is that a yes, Congress does have the power to mandate?
DYSON: It’s open. If they decide that they will, they will have the power to do so.
Next was Harvard Professor Jill Lepore, author of The Whites of Their Eyes: The Tea Party’s Revolution and the Battle over American History (a book that, according to its jacket, describes the current tea party’s “narrative” as a “fable” that is “anti-intellectual, anti-historical, and dangerously anti-pluralist.”) She confused the Commerce Clause with the First Amendment:
LEPORE: Can I just sort of offer up a sort of a slightly different vantage on this question, because I think it’s an important one. But I think, again, just sort of sound the note again, that this debate is what the Constitution is about. Right? We can have this debate. This is evidence that the Constitution is working.
So the Constitution is working — but none of the three panelists could answer whether the six word provision giving Congress the power to “regulate commerce . . . among the several states” means it can require obese people to sign up for Weight Watchers. The editor/author said he did not know; one professor said the answer is whatever the Supreme Court says it is; the other said it was great we are having this debate.
The whirring sound you could hear in the background was the Founders spinning.
Will’s question was a modified “Broccoli Mandate” query: if Congress can mandate every individual to purchase health insurance, can it also mandate that people eat broccoli, or join a health club?