Here is a site that makes the argument that Obamacare is constitutional.
Here is my counter argument that I first posted at a blog called The Living Room Times.
My take on the Balkin article:
I) He spends a lot of time discussing the House bill. This is off topic and I will ignore it.
II) His argument that this is not an individual mandate:
A) Listing a set of people who are exempt from the mandate does not invalidate the fact that for most people it remains a mandate. Instead it reinforces the fact that it is a mandate for those not exempted.
B) At least four of the exemptions Balkin describes are temporary states, and when that person’s status changes the mandate will cover them.
C) He argues that it is a tax, and not a mandate.
1) He first argues that it is an excise tax, in his words a “tax on transactions or events”. However this is not a tax on a transaction or event, it is a tax on the absence of a transaction or event. The person is not being taxed on something he did, but rather because he didn’t do something. This is not an excise tax.
2) He then argues that it is a penalty tax, a tax for not doing something you are mandated by the government to do. Logically this defeats the whole basis of his argument that it is not a mandate. You can’t be penalized for not doing something you are not mandated to do.
D) If his argument is that the term individual mandate is misleading, why does he then proceed to use the term in the rest of his article?
III) His General Welfare argument
A) The term general welfare had a much different meaning when the Constitution was written than it does today. The general welfare clause originally was a justification for passing laws, not a justification for entitlements.
B) Balkin states:The individual mandate is a tax. Does it serve the general welfare? The constitutional test is whether Congress could reasonably conclude that its taxing and spending programs promote the general welfare of the country
The individual mandate is not a tax. The individual mandate is a requirement to purchase health insurance. The tax is a penalty for not complying with the mandate. The argument is not that the government cannot impose taxes or penalties, it is that the government cannot require you to purchase health insurance. If this bill simply taxed the people to pay for health care this constitutional argument would not exist.
C) As Sully says above his polluter analogy is flawed. To be correct he must instead argue that everyone, polluters and non- polluters alike are forced to pay for pollution control equipment or pay a fine. Indeed it would be more accurate to say that everyone is forced to pay for yearly pollution offsets every year or pay a fine, whether they produce pollution or not. (in any case the analogy would still be flawed)
D) I strongly disagree with his proposition that “the textual argument for Congress’s authority under the General Welfare Clause is obvious and powerful” in this case. He assumes that proposition. His only arguments are the flawed pollution analogy and a flawed definition of the individual mandate.
IV) His Commerce Clause argument:
A) Both of the cases he cites, Wickard v. Filburn and Gonzales v. Raich (both of which I disagree with), are cases where the government prohibited people from taking an action that might affect interstate commerce. This is a case where the government is forcing people to take an action by arguing that their inaction affects commerce. Prohibiting an action is not the same thing as mandating an action.
B) Where is the logical end of this argument? Using this argument the government has a basis to mandate that individuals purchase anything they want because it could affect commerce. Why can’t the government mandate the purchase of a new GM or Chrysler car every four years? Not buying GM or Chrysler products has a huge impact on interstate commerce, especially on other buying their products.
“Because Congress believes that the GM and Chrysler bailouts won’t succeed unless these people are forced to buy GM or Chrysler products, it can regulate their activities in order to make its bailout of GM and Chrysler effective.”
V) In my opinion, the argument is not properly “Will the Supreme Court over turn this law.” sadly, I agree that it is unlikely that there are enough votes to overturn this law. However the argument properly should be “Should the Supreme Court overturn this law?” In that case I think the only answer is yes.
Update 10/27/10 9:45AM: Great minds think alike.