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More on the Constitutionality of the Individual Mandate for Health Insurance

By Jack M. Balkin

The second half of my debate with David Rivkin and Lee Casey on the constitutionality of the individual mandate has just been published by PENNumbra. Rivkin and Casey's closing statement is here and you can find mine here. If you missed the first round of arguments, you can find them here (Rivkin and Casey) and here (me).

In the first round, Rivkin and Casey tried to resurrect the The Child Labor Tax Case (Bailey v. Drexel Furniture Co. , 259 U.S. 20 (1922) from the Lochner Era. In the second installment, they dredge up Pollock v. Farmers? Loan & Trust Co., 158 U.S. 601 (1895), a case that held that the income tax was unconstitutional and that was overturned by the Sixteenth Amendment. Their argument is that the individual mandate is a direct tax. Text, history, structure and precedent are all against them, as I show in my rebuttal. The debate on the commerce power also continues, with Rivkin and Casey trying (unsuccessfully) to distinguish Gonzales v. Raich -- and pretty much the entire New Deal.

What is remarkable about this exchange is that Rivkin and Casey have to reach back to the Lochner Era (and even earlier, in the case of Pollock) to find legal authority for their claims. Despite this, they make their arguments with an entirely straight face. This suggests that what they are really advocating is a return to pre-1937 understandings.

Except, that is, where Presidential power is concerned. Orin Kerr joked that Rivkin and Casey would probably argue that the individual mandate was constitutional if it was justified by the President's powers as commander-in-chief. Obama's problem, it seems, is that he didn't package health care as an anti-terrorism measure.

Full post as published by Balkinization on November 24, 2009 (boomark / email).