Following up on Ezra Klein's assurances...

Law professor Jonathan Adler today on Volokh posts a response to Sen. Baucus' relying on his analysis of Commerce Clause precedent to green-light the constitutionality of a healthcare insurance mandate:

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In short, Congress could mandate universal participation in any economic activity and mandate the purchase of any product or service it chooses, so long as it does so as part of a broader regulatory scheme.

While some of the language in the majority opinion and Justice Scalia’s concurrence in Raich implies Congress has such power, this approach would create a commerce power without limit, an outcome which both Lopez and Morrison said was incompatible with the concept of enumerated powers. So to embrace this view, as I argued in this article, is to eviscerate their holdings. As I believe Lopez and Morrison are more consistent with the text of the Commerce Clause and the principles of enumerated powers, I would prefer that the Supreme Court uphold these decisions and overturn or severely limit Gonzales v. Raich, Wickard v. Filburn, and a few others.

So, while Senator Baucus correctly quoted my belief that an individual mandate is likely constitutional under existing precedent, he omitted my belief that existing precedent is unduly expansive. So while I would expect a lower court judge to uphold the mandate as against a constitutional challenge, I do not think the Supreme Court is required to do so. Indeed, I believe the Court could distinguish Raich, and hold the mandate out of bounds. (For an argument why courts should, and might, do so, see here.)

I should also note that I do not believe that members of Congress should base their decisions on whether to support proposed legislation based upon their prediction of how federal courts are likely to rule. Every member of Congress takes an oath to uphold the Constitution. I am old fashioned enough to believe this oath obligates each and every member of Congress to consider the constitutionality of proposed legislation for themselves, and refuse to vote in favor of legislation they conclude is out-of-bounds, even if they think the legislation would be a good idea. So Senator Baucus should spend less time quoting the assessment of folks like me about what current precedent means for proposed legislation, and more time explaining why he finds this and other legislative proposals to be consistent with the text, structure, and history of the Constitution he took an oath to uphold.

= "Do your own work, dammit!, instead of relying on your misinterpretions of mine."