The Gotcha Question

Adam Winkler has an interesting post on the legal fight over the Affordable Care Act and the "gotcha" question the conservatives are likely to ask: What are the limits of the commerce clause if the mandate is constitutional?

Some lawyers defending the mandate agree that there really aren’t many, if any, limits on Congress’s power under the existing case law. Even conservatives such as Charles Fried, Orin Kerr, and Robert Pushaw have argued that, under the doctrine as it stands, the mandate is constitutional. Indeed, the case law on the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause (relating to the tax power) all lean heavily in favor of upholding the individual mandate. But this, I wish to suggest, misses the question. The “gotcha” question.

Whichever government lawyer is assigned to argue for the constitutionality of the mandate before the Justices is sure to do exactly what Malcolm Stewart and Drew Days did by emphasizing that precedent controls. He or she will argue that previous decisions of the Court indicate that Congress has the ability to regulate health insurance by imposition of a mandate. But will he or she also follow Stewart and Days and fail to articulate meaningful limits on Congress’s power?

I've been arguing something similar for a while, but I didn't realize how much similar questions factored into previous commerce-clause cases. Liberals can't just respond to concerns about unlimited federal power by citing precedent and dismissing the slippery slope as paranoid. They have to articulate both why the mandate is constitutional and why the issue of health care is unique enough that it does not, in fact, mean the government can make you do anything it wants. This is as much a legal question as it is a political one, and Winkler's right that ultimately, the mandate will likely survive or perish based on how well the ACA's defenders are able to answer it.

Full disclosure: Drew Days is my uncle.

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