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Checks, Balances, and Individual Mandates

James A. Montanye

Several states have announced their intention to challenge Obamacare’s “individual


mandate” provision, which requires all Americans to purchase qualified healthcare coverage. The
challenges hinge partly upon an “originalist” reading of the Constitution’s “commerce clause,” as
set forth in Article I, Section 8, which empowers Congress “To regulate commerce ... among the
several States.” Many distinguished constitutional scholars dismiss the announced challenges as
feckless, election-year thundering.
The commerce clause’s meaning has become breathtakingly expansive. One explanation
is that the Supreme Court uses the clause as a convenient means for deferring to legislative
action. Judicial deference is appropriate, not only because the Court’s power of constitutional
review rests on arrogated authority rather than constitutional delegation, but also because courts
lack the omniscience to act as overriding, super-legislative bodies. The late Justice Holmes spoke
privately to this point: “I am so skeptical as to our knowledge about the goodness or badness of
laws that I have no practical criticism [of them] except [to say they are] what the crowd wants”
(qtd in Alschuler 2000, 59). Accordingly, Holmes presumed every law to be constitutional unless
it made him want to “puke” (Posner 1995, 192).
The upshot is that any federal court with a strong stomach and a taste for Obamacare will
have no difficulty upholding the law’s individual mandate provision on “commerce” grounds.
The plain language of Section 8 nevertheless grounds a valid ‘checks-and-balances’
argument in support of the impending challenges. The section establishes that “The Congress
shall have Power To lay and collect Taxes, Duties, Imposts and Excises, ... to pay for ... the
general Welfare of the United States.” Congress' affirmative duty here is twofold. First, to must
ascertain what the general Welfare requires. Second, it must collect funds with which to satisfy
those requirements. The onus of collecting funds from a prudently skeptical and warily cynical
citizenry checks Congress’ otherwise unfettered ability to impose wildly utopian visions of “the
general welfare.”
The Constitution surely empowers Congress to enact universal healthcare legislation, as
the Medicare program plainly attests. Medicare, of course, is funded through taxation. The
language of Section 8 arguably obliges Congress to fund Obamacare likewise, lest the legislation
evade the check imposed by the public funding requirement.
Justice Holmes' dyspeptic dissent in Maxwell v. Bugbee, 250 US 525, 543 (1919), speaks
to the constitutional issue raised: “Many things that a legislature may do if it does them with no
ulterior purpose, it cannot do as a means to reach what is beyond its constitutional power.”
Obamacare is within Congress’s authority to enact, but it must do so through the public fisc.
References

Alschuler, Albert. 2000. Law Without Values: The Life, Work, and Legacy of Justice Holmes.
Chicago: University of Chicago Press.

Posner, Richard. 1995. Overcoming Law. Cambridge, Mass.: Harvard University Press.

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