The Future Of The Health Bill Mandate
A detailed analysis of the ridiculous decision by District Judge Henry Hudson (PDF) striking down the individual mandate would be superfluous as any honest and competent constitutional scholar knows that the decision is not even close to being in line with existing Supreme Court precedent, and it is certainly not the job of district court judges to ignore existing Supreme Court precedent. As Orin Kerr succinctly states:
The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.
And if you decide that Chief Justice Marshall was wrong in McCollough v. Maryland, then you still have to overcome the express taxing power of the government. But, as I say, this is not an interesting discussion to me. More interesting is why the health bill did not instead include an auto enrollment feature instead of the mandate - much as what is used for Medicare, Social Security and unemployment insurance. The reason was that the Obama Administration wanted insurance industry buy-in into the health bill. The success of that venture is debatable at best.
And there will be no second bite at the apple legislatively, Pangloss Ezra Klein notwithstanding. No, the individual mandate will be saved by the Supreme Court. People are surprised by my prediction on this point, but I think it is due to their naivete about how courts function.
This Supreme Court will want to save the individual mandate - because that's what the insurance companies want. They'll write a lot of pretty words to salve the crazy Right on the issue but the result will be the mandate survives. Because that will serve the interests that the Supreme Court will want to serve- the insurance industry.
Speaking for me only
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