NYT editorial on the Individual Mandate.

Randy responds:

It strikes me as significant that the editorial board of the Times now feels the need to address the constitutional objections to the individual mandate, just as the Senate Judiciary Committee decided to hold its first hearing on the constitutionality of the individual mandate more than a year after the Senate passed the bill.

Unfortunately, like Akhil Amar and Laurence Tribe, the Times failed to address the actual objections being made by the plaintiffs and the actual reasoning of Judge Roger Vinson. ... Instead we get this:

While the federal courts consider whether the health care reform law is constitutional, there is an intense and even wider debate playing out in political and legal circles about the Constitution and Congress’s power to solve national problems.

At a Senate Judiciary Committee hearing last week on the reform law, two witnesses argued fiercely opposing views. Walter Dellinger, a former acting solicitor general under President Bill Clinton, made a compelling case for the law’s constitutionality. He said that the commerce clause was the main source of Congress’s power for regulating the nation’s economy, an argument going back to Chief Justice John Marshall.

Randy Barnett, a Georgetown law professor, made a countercase based on what he calls “the lost Constitution,” an interpretation that would limit much of that basic law, including the commerce clause.

The hearing lasted over two hours, and I have not read the transcript, but I do not believe I mentioned “the lost Constitution.” Regardless, none of the challenges to the individual mandate are based on restoring any of the “lost clauses” of the Constitution, and neither was my testimony.

All the challenges are based on existing Supreme Court doctrine defining the scope of the Commerce and Necessary & Proper clauses. None are based on the original meaning of the Constitution. Nor was Judge Vinson’s decision, though you would never know it from reading these three sources.

His ruling is based on the simple and undeniable fact that the “substantial effects” doctrine is currently limited to regulating “economic activity.” This is why Congress and the government have offered shifting explanations of how the mandated does regulate economic activity. Congress is regulating economic “decisions” (says the statute) or the activity of obtaining health care or the activity of paying for health care (says the government in its briefs), or economic “matters” (said Professor Dellinger).

If the argument that the government is regulating economic activity is so straightforward, one might imagine that the government could by now have settled on a single theory of what activity is being regulating. And academics would not continue to shift the discussion to the tax power. But no.

In addition to groping for some way to describe inactivity as activity so as to bring the mandate under existing doctrine, the government has also relied upon a concurring opinion of Justice Scalia that Congress may reach noneconomic activity that is “essential” to the regulation of interstate commerce — an opinion in which Justice Scalia uses the terms “activity” or “activities” forty-two times. Perhaps Justice Scalia will someday extend this theory to include the power to regulate inactivity (or to mandate that persons engage in economic activity) when doing so is essential to a broader regulatory scheme, and it will be adopted by five justices. But that is not yet current doctrine, so we will just have to wait and see.

Professor Barnett does a pretty good job of keeping down the legalese -- and explaining the argument and precedents in words that even a Journolister might understand, were he to keep an open mind.

The Volokh legal blog does a good job in general -- some posters better than others -- of going into greater legal detail than you might find in the mainstream media editorials, columns and blogs. Barnett especially is not afraid to break from the law professor crowd, and introduce and patiently explain other ways of examining these legal issues. He doesn't hold back, with a finger in the air, to see which way the wind is blowing before committing to his opinions. Not creative so much, just not locked into the conformative mindthink that you see from lesser professors and pundits. Innovative thinking about serious issues that promise to affect us all... (In short, I'm saying: Worth reading the whole thing.)

And hey, did I mention that Barnett comes from south suburban Cal City?? We're proud of our athletes that hail from here, what about a shout-out to our men of the mind?

Some folks are born silver spoon in hand
Lord, don't they help themselves, oh
When the taxman comes to the door
House looks a like a rummage sale...

It ain't me, it ain't me
I ain't no millionaire's son
It ain't me, it ain't me
I ain't no fortunate one, no

Some folks inherit star spangled eyes
Yeah, when they send you down to war
Well, when you ask them how much you should give
Yeah, it's always more, more, more...

You might say, he's helping to fight for our own self determinism here in America. Whether our young and healthy -- currently not encumbered with huge medical bills nor consuming such services, pills and procedures -- should be forced to share in the healthcare risks and bills of our aging elders. Or whether healthy individuals should instead be permitted to invest their financial resources themselves as their own family/personal situations and health risk thresholds dictate.

Better to look at these legal issues with our eyes wide open now, so that we don't see screaming protesters in our own streets -- years down the road -- after locking into policies now that could financially cripple us all.

ADDED: Bob Herbert's column today also address the way we've been locked into well- lobbied, but financially unsound, unpopular policies here at home.

While millions of ordinary Americans are struggling with unemployment and declining standards of living, the levers of real power have been all but completely commandeered by the financial and corporate elite. It doesn’t really matter what ordinary people want. The wealthy call the tune, and the politicians dance.

So what we get in this democracy of ours are astounding and increasingly obscene tax breaks and other windfall benefits for the wealthiest, while the bought-and-paid-for politicians hack away at essential public services and the social safety net, saying we can’t afford them. One state after another is reporting that it cannot pay its bills.
...
The poor, who are suffering from an all-out depression, are never heard from. In terms of their clout, they might as well not exist. The Obama forces reportedly want to raise a billion dollars or more for the president’s re-election bid. Politicians in search of that kind of cash won’t be talking much about the wants and needs of the poor. They’ll be genuflecting before the very rich.
...
When the game is rigged in your favor, you win.
...
The Egyptians want to establish a viable democracy, and that’s a long, hard road. Americans are in the mind-bogglingly self-destructive process of letting a real democracy slip away.

ADDED: Paul Krugman too, weighs in on essentially the same topic. Who gets the guarantees, and who picks up the tab?

WIC $1,008 million:
WIC is nutritional aid for pregnant women and women with young children; let’s cut that, because the damage to the nation from malnourishment is a problem for future politicians.

Perhaps,
it's not cold-heartedness so much, just acknowledgement that the country cannot afford to continue subsidizing the nutrition and birth expenses to create so many needy young lives ($1008 million?).

Chances are,
these are the children who will need taxpayers not only to fund their educations, but their shots, school lunches (breakfasts, and dinners in some places too), and remedial help readying them for kindergarten.

I know "accidents" happen, and unplanned pregnancies occur. But we seen the shift in out-of-wedlock births for our middle- and upper-middle class men too. Might it be that some men are gaming the system? Simply not choosing to marry until their children's early needs are paid for by taxpayers?

Sure we can't have our children and elderly starving, but perhaps the financial resources that are being spent elsewhere might be best spent taking care of their own, instead of shifting the burden to more responsible others? And we might go back to preferring that people wait to start their families until they are financially more fit?

Ditto with the illegal immigration argument. As non-citizens, the mandates do not apply, yet no one is going to turn a pregnant woman away from the hospital. Perhaps if we could better enforce our immigration policies at the borders, it might help those here legally to keep some of their own hard-earned money in their own pockets, without it being taxed to help pay for the multiple births incurred under WIC?

Mercy yes. Help for the indigent, surely. But to place financial incentives to help those middle class who thrive on bureaucratic error and being a burden financially to uninvolved others? At some point, we have to find a way to not be so liberally generous as to affect people's personal decisionmaking in negative ways.

Don't stop thinking about tomorrow, indeed.

Especially think of those responsible, striving young people today, who will still be around in years to come, saddled with paying off these promises? It's easy, of course, to give gifts that you're not paying for yourself.
-------------
Finally,
regarding this: "44 percent of Social Security recipients, and 40 percent of Medicare recipients, believe that they don’t benefit from any government social program."

I suspect these many of these elders don't seem themselves as recipients of government generosity so much, but as drawing back the money they involuntarily invested into such a system over their working years. If you put in as a young healthy man, and now take back, that's different from needing to pull out money at the very beginning -- for births, food, healthcare, and on... -- before you even begin contributing to such a generous system.

Can you see the difference?