The following is an excerpt from OpinionJournal.com’s “Best of the Web” written by the editor, James Taranto.
Do They Have an Argument?
Agence France-Presse has an interview with former acting solicitor general Neal Katyal, whose successor, Donald Verrilli, is arguing the government’s case in defense of ObamaCare today through Wednesday. Maybe the administration is saving its best stuff for the justices, but if Katyal’s comments to AFP are an indication of the quality of the government’s case, it will be an injustice if ObamaCare isn’t thrown out 9-0. His arguments are really, really, lame.
“It’s rare for a president’s signature initiative to come before the Supreme Court and be challenged as unconstitutional,” he says. Even that whiny and innocuous-sounding claim isn’t true: Among the presidents whose “signature initiatives” faced high court scrutiny–sometimes successfully, sometimes not–were Franklin D. Roosevelt (the Social Security Act, the National Industrial Recovery Act and others), Lyndon B. Johnson (the Civil Rights Act) and George W. Bush (the Military Commissions Act and other antiterror policies).
The central argument against the constitutionality of ObamaCare’s individual mandate is that the Constitution’s Commerce Clause has never been interpreted as authorizing Congress to force individuals to purchase something from a private company, that to interpret it in such a way would vastly expand congressional power, and that such an interpretation would be mistaken. Surprisingly, Katyal comes very close to conceding all these points:
The challengers to the reform say that never before has the government forced people to buy a product. We’re not forcing you to buy a product. Health care is something all Americans consume, and you don’t know when you’re going to consume it. . . . We are not regulating what people buy, we’re regulating how people finance it.
The crux of the government’s argument would appear to be the distinction between a “product,” which Congress lacks the authority to force you to buy, and a financial instrument, the purchase of which it may make compulsory. So the government couldn’t compel you to buy broccoli (a product), but it could force you to buy shares in a food co-op (a financial instrument) in interest of cross-subsidizing others’ broccoli purchases.
Katyal says he worries that a ruling against ObamaCare “could imperil a number of reforms in the New Deal.” But actually his own argument runs counter to the court’s New Deal-era Commerce Clause jurisprudence. As Randy Barnett pointed out in our 2010 Weekend Interview, “commerce” was originally understood to refer only to “trade in things–goods,” or, in Katyal’s formulation, products.
The distinction between products and financial instruments (as well as services) went by the boards a long time ago. In U.S. v. South-Eatstern Underwriters (1944), the high court held that the Commerce Clause authorizes Congress to regulate insurance. If the Commerce Clause applies equally to goods and financial instruments, it is incoherent to say that it authorizes the mandatory purchase of the latter but not the former.
Katyal has one more complaint:
The challengers are saying that this law is unconstitutional, which means even if 95 percent of Americans want this law, they can’t have it. And that’s a really profound thing for an unelected court to say.
Well yeah, it’s called judicial review. Don’t they teach Marbury v. Madison in law school anymore? At least in theory, the court is obliged to overturn a popular law if it is unconstitutional. That’s why, for example, the government can’t ban the burning of the American flag in protests.
We assume that when Verrilli is before the justices, he won’t be boneheaded enough to suggest that they should refrain from overturning an unconstitutional law merely because it’s popular. It would be a ridiculous argument even if it were not without merit, because ObamaCare isn’t popular!
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