A Primer on the Individual Mandate and Its Unfortunate Constitutionality

15 11 2011

The Supreme Court has granted certiorari to an appeal from the 11th Circuit Court of Appeals decision holding the individual mandate, Section 1501 of the Affordable Care Act, to be unconstitutional. The case, United States Department of Health and Human Services v. Florida, looks at a number of issues arising from the bill, most of which are not of general interest, such as whether the federal Anti-Injunction Act prohibits challenges to the Affordable Care Act (probably not).

The big constitutional question at issue is whether Congress’ Commerce Clause powers allow it to compel people, “as a condition of residency in the United States” to purchase monthly health insurance coverage. It’s a big important question, because it is an unprecedented exercise of power by Congress, not in scope, but in form: where Congress has tried to achieve similar things in the past, it has typically either regulated producers or used its taxing powers, which is nearly infinite.

So here’s a bit of a primer to help you argue with the blowhard Randite at your office who thinks the individual mandate is slavery, as well as with your Democratic partisan former college roommate who thinks it’s the greatest thing since the New Deal.

What the Commerce Clause Has To Do With It

Article I, Section 8 of the Constitution lays out Congress’ enumerated powers. Clause 3 specifies that Congress shall have power to “regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” This is the “Commerce Clause,” and it is made up of two broad areas: the more obvious facial power, to regulate commerce between parties in different states, and the “dormant” power to prohibit states from passing their own laws that would, in effect, regulate such commerce. In other words, regulating commerce between states is the sole province of the U.S. Congress, and the U.S. Congress, unlike state legislatures, has only those powers granted by the Constitution, whereas states have a “general police power” [PDF] that Congress does not.
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Overreaction and the Constitution: Gun Show Loophole

20 06 2011

Reason Magazine’s Barton Hinkle has an interesting thought experiment: suppose that a document written by Mexican drug cartels was unearthed that specifically instructed its mules and distributors in the U.S. to exploit the protections of accused criminals in the U.S. justice system. Would that be reason enough to abrogate them?

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Public Purpose: Kelo v. New London and Neoliberal Paternalism

23 05 2011

In 2005, an eminent domain case became the unlikely focus of a fiery national debate on the seemingly ever-increasing power of the government to interfere with private citizens. What was interesting about the Supreme Court’s Kelo decision was that it exposed an uncomfortable reality that America’s petit liberals and statist conservatives try hard to deny: that ultimately, they differ mostly rhetorically, and substantively only on details rather than fundamental principles. At the same time, the libertarian right decried the decision in direct confrontation to the John Galts of the world–the economy’s most powerful actors.

Now, six years later, the facts have shaken out, and the Kelo decision is even more starkly and profoundly wrong. How the situation has actually played out in New London reveals just how deeply the neoliberal consensus has undermined basic principles of economic and personal freedom and perverted even jurisprudence.
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Is There a Leftist Case Against the State?

6 08 2010

I feel the tension between liberals and the Left. Being on the political Left in the US puts you in uncomfortable position because the national conversation is extremely narrow, and liberals focused on day-to-day governance are pinched from both sides. Those on the broader Left–the “International Left”–come across as contrarians or as puritanical. Petty liberals–those who, broadly speaking, hew to the center-left line of the Democratic Party, embodied by the Brookings Institute, the Center for Budget and Policy Priorities, and public intellectuals like Matt Yglesias or Robert Reich, and politicians like Barack Obama and, formerly, Ted Kennedy–bristle as much at criticisms from the Left as they do to criticisms from the American right wing, and often are more defensive against those criticisms as they see them as coming from an attitude of “purity” or Utopianism.

Before getting to the problems with statism, it is useful to define what I mean by “liberals” and “the Left”.

It is hard to define terms in this debate, because the political spectrum is essentially fluid and the absence of ideological parties with specific manifestos confound categorization. In general terms, the petty liberal left is redistributionist and mildly statist; petty liberals don’t dispute that the foundations of American society are essentially just; rather, they seek to use extant institutions to address distributive problems.
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