Notes From Babel

The Individual Mandate, and the Last Nail in the Commerce Clause

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This question keeps getting asked (e.g., here and here): If the individual mandate is constitutional, then is this the end to the enumerated powers doctrine, and is there anything Congress can’t do?  Instead of an answer, I keep seeing supporters of the mandate respond with some variation of, “well we already have Social Security and the Department of Education, and the mandate is not that conceptually different.”

But this is not a response, unless it means one of the following:

  1. The enumerated powers doctrine was all make-believe in the first place, and thus there can be no objection to federally mandated participation in Social Security, federally mandated K-12 education, or federally mandated participation in the private health insurance market; or
  2. We have, by increments, already conceptually dismantled the enumerated powers doctrine (mostly in the 1930s and 40s during the New Deal following the rise of Progressive philosophy during the late 19th and early 20th centuries, and immediately following FDR’s court packing proposal), so there is no remaining objection to the individual mandate or anything else Congress wants to do.

I will be the first to acknowledge Congress has exceeded its enumerated powers in the past. I would have thought something as odious as a national conscription into the private insurance market would have been the bucket of cold water that rattled us out of our slumber and revealed the absurdity of the Court’s permissive Commerce Clause jurisprudence.  That is, we have a national legislature that can only do certain things, except that it can do everything.  If liberals are able to reverse a classic reduction to absurdity into an argument that our jurisprudence actually requires we accept the proposition that the individual mandate is actually somehow faithful to our Constitution, I will have to hand it to them.


Written by Tim Kowal

December 19, 2010 at 7:13 pm

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