Legal Commentary

A Better Question

By Orin Kerr

In light of David K.and Ilya?s posts on the constitutionality of the health care mandate, let me propose a better question to ask. It?s a little more complicated, but I think it will be more illuminating. Here?s the idea. Instead of asking experts ?Is the health care mandate constitutional?,? we should ask experts this question:

In your view, which of the following federal programs or agencies are constitutional?

(a) Social Security
(b) The Federal Trade Commission
(c) Medicare/Medicaid
(d) The Securities and Exchange Commission
(e) The new Health Care mandate

I think this would be a helpful question because it would it would distinguish those scholars who think most of the federal government is constitutionally okay but the health care mandate is different from those scholars who think most of the federal government is unconstitutional, and the health care mandate is just one more unconstitutional part along with the rest. (And while I can?t fairly put Ilya and David K. on the spot, I admit I would be kind of interested in their answers to the question above.)

Full post as published by The Volokh Conspiracy on April 02, 2010 (boomark / email).