Is Obamacare Really Unconstitutional?

A somewhat surprising blogospheric chorus of: meh. Reihan:

The individual mandate is a rhetorical device. To pay for a new health entitlement, we need to impose a tax. But to mask the cost of the new health entitlement, the president and his allies chose a more complex structure. That's really all there is to it. The federal government can very easily offer everyone health insurance, and it can offer a choice of private insurance providers through an exchange. This is roughly what happens in a number of advanced market democracies. Yet if the individual mandate is found unconstitutional, the federal government will have to do this through a more transparent and coherent vehicle.


Hudson conceded that striking down the individual mandate would not invalidate the whole Patient Protection and Affordable Care Act. If you strike the individual mandate but leave the rest, you have a system that could easily be patched up with a better mechanism to avoid free-riding. The real loser here is the health insurance lobby. Health insurers would have preferred to avoid any health care reform at all. But the health insurance lobby's second-highest priority would be a working system with an individual mandate. A world in which they cannot discriminate against sick people but in which healthy people can avoid buying insurance until they're sick is a nightmare.


... a year ago, proponents of the law were dismissing legal charges as crackpottery with no chance of succeeding.  Now, while it doesn't look precisely likely that the law will be overturned in the courts, there does seem to be at least a small chance it will happen.  As it should be in my opinion, even though I'm aware that this could have a disastrous impact on the insurance markets.  If the law stands, what does that mean for American liberty?  Or to put it another way:  what do supporters of the law think the government can't force you to buy, and how do you reconcile the answer to that question with the rights the government is now asserting?


A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to "economic activity" seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia -- that the federal health care mandate is unconstitutional -- is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Richard Epstein:

The decision of Judge Henry Hudson in Virginia v. Sebelius is no bird of passage that will easily be pushed aside as the case winds its way up to its inevitable disposition in the United States Supreme Court. The United States gave the case its best shot, and it is not likely that it will come up with a new set of arguments that will strengthen its hand in subsequent litigation.

Ilya Somin:

The weakest part of Judge Hudson’s opinion is his analysis of the government’s Necessary and Proper Clause argument, which merely claims that the Necessary and Proper Clause only authorizes legislation that is linked to an enumerated power, but does not really explain why the mandate is not. In my view, a far better answer to the government’s argument is that the mandate isn’t “proper” even if it is “necessary” and that it runs afoul of the five part test recently outlined by the Supreme Court in United States v. Comstock. I discussed both points in some detail in the amicus brief (pp. 25–30), and in a shorter form here

Robert Alt:

Although the severability question is far from clear, we think the best evidence of what Congress and the President would have done is found in the statements of its leading sponsors (including Sen. Baucus) and President Obama that the individual mandate was absolutely essential to the economic scheme in the rest of the act.  In short, they would not have enacted the law without the individual mandate, and thus, the entire law should be struck down.

Don Taylor:

The practical definition of what is constitutional these days is whatever Anthony Kennedy thinks. This is the clearest, simplest treatment of the constitutional issue I have read, and makes me think the individual mandate will be upheld eventually (as does private convos with a couple of constitutional lawyers). ...

No country has gotten anywhere near a universal coverage system without some type of a mandate, or a mix of mandates, and neither will we. Medicare, for example, is a type of mandate because you must pay payroll taxes, and then you are eligible for insurance.