Randy Barnett makes the case:
Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power “to regulate commerce . . . among the several states.” Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That’s why insurance has traditionally been regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of “economic” activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that’s how the court would probably view the regulation of health insurance.
But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.
If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.
Barnett goes on to point out that the geographical inequities in medical coverage inherent in health care reform legislation might also bring about a constitutional challenge. I doubt in the end that a court would do anything in response to any challenge, but it is worth trying; merely because the courts may stay out of the entire affair does not mean that Barnett doesn’t bring up good legal arguments against the health care reform legislation that Congress has passed, and that President Obama will sign into law. I’ve been wrong about things before, and if the courts buy Barnett’s argument–my expectations to the contrary notwithstanding–I shall happily admit error concerning my predictions about the courts’ likely reply to any suit.
Meanwhile, let it be noted that Brad DeLong’s entire counterargument consists of saying that Barnett’s legal stance would only work if “Republican Supreme Court Justices” are made “to forget their oaths, ignore the law, and help their party.” Other than this conclusory slur, DeLong has nothing to offer against Barnett. The old lawyer’s joke is that when the law is against you, argue the facts. When the facts are against you, argue the law. And when both are against you, pound the table. DeLong doesn’t even do a credible job at table-pounding; indeed, one wonders whether he has busted a knuckle or several in trying to hammer his fist against a bureau, desk, or counter. Why oh why oh why oh why oh why oh why oh why oh why oh why oh why oh why oh why oh why can’t we have a better Brad DeLong?
UPDATE: Ilya Somin, like me, doesn’t see legal action succeeding against health care reform. But he shows how it might succeed, which doubtless puts him in the cross hairs of a future Brad DeLong post accusing Somin of encouraging “Republican Supreme Court Justices” to violate their oaths.