"You cannot be serious!"

Ann Althouse has been poking fun at Josh Marshall (and Nancy Pelosi) for what she calls "constitutional argument by laughter," the idea being that Marshall's disdain for constitutional arguments against healthcare reform's mandate could not have been serious.  Of course, a federal district judge disagreed earlier in the week.  I can't help but imagine that maybe this was Marshall's (and Pelosi's) reaction:

 

 

UPDATE: Welcome, Althouse readers!  Please check out the rest of my blog, including a lot of entries on the Portland bomb sting case.

Comments

[Matthew Lewis]

Just once, I wish a conservative/libertarian gleefully touting this ruling would mention that the individual mandate has already been upheld twice by federal judges. And that the rulings have broken along predictable partisan lines. Mayhaps this ruling (as well as the others) has more to do with a partisan judiciary than with constitutional merits?

And anyway, can everyone claiming that a strict reading of the commerce clause rules out an individual mandate please explain to me why the commerce clause has been a blank check for so long? I'm fairly certain a reading that outlaws the mandate would also invalidate some obscene amount of legislation over the last century. Slippery slopes work both ways (I'm looking at you, McArdle).

[Matt Hoffman]

This is how the Dems are going to fight a resurgent GOP war machine? We are doomed. But if anything, Johnny Mac--great perm!

[Tung Yin]

Matthew, I could've mentioned that it's been upheld by two judges (both Democratic appointees), but I don't think it has relevance to the question of whether it was inconceivable (yes, Princess Bride reference) that a judge would strike down the mandate. I'm not saying that Judge Hudson was right, just that a McEnroe-like reaction to the ruling would be . . . strange(?).

On why the Commerce Clause has been a blank check for so long, see U.S. v. Lopez (1995) and U.S. v. Morrison (2000), where the Court struck down the Gun-Free School Zones Act and parts of the Violence Against Women Act as beyond the Commerce Clause. I do not think that viewing the individual mandate as beyond the Commerce Clause would invalidate a lot of legislation. It could, depending on how one reads it, but it need not.

[Tyrone Slothrop]

The argument against the individual mandate could not be simpler. If not buying health insurance is economic activity that can be regulated by Congress, then anything can be regulated by Congress. Buying, not buying-- that about covers it. Cuccinelli's analogy is apt. What if a Republican Congress backed by a (soon to be) Republican president, voted to require every citizen to buy a gun? Not buying a gun would be an economic activity that would fall under Congress's purview, by the left's specious argument. Arguments for gun ownership adding to the public good are easy to make.

[Sigivald]

"And anyway, can everyone claiming that a strict reading of the commerce clause rules out an individual mandate please explain to me why the commerce clause has been a blank check for so long?"

Because it suited the Progressive court of earlier this century, and precedent is sticky.

But that applies only to cases where there is at least something like "commerce" or even, under Raich an activity (growing marijuana in one state for consumption in it) that at least replaces an economic activity (purchasing marijuana for consumption) that has a plausible interstate connection, since the market for marijuana is not bounded by any one state.

But as Tung Yin aptly pointed out, the Courts have rejected the use of the Commerce Clause to justify things that patently have no real connection to commerce.

Can you explain to me exactly how "To regulate commerce [...] among the several States" applies to "make everyone purchase something"; the forbidding of non-participation in economic activity?

That is, since you brought up "constitutional merits" - which, as a reminder, are only vaguely related to Supreme Court precedent - especially since you already advocated the idea that court decisions are inherently partisan.

[Matthew Lewis]

I fail to see how outlawing the growing of marijuana in my backyard is less of an affront to my freedom under the commerce clause than the individual mandate. I would argue that the mandate is far more relevant to interstate commerce than the current prohibition on the growth and consumption of cannabis (among many other laws). As a result, I see the "you can't be serious that this is constitutional" conservative crowd as rather silly. The same people want to limit my ability to grow and ingest a weed and my gay friend from getting married, but being fined if they don't buy insurance is beyond the pale? I don't buy it.

More when its not 2am and I'm not a bit drunk.

[Tung Yin]

Note that Justices O'Connor and Thomas voted to limit the Commerce Clause in Lopez, Morrison, and Raich, and there are numerous other people who are skeptical of the health care mandate who also favored allowing the States to trump the federal government's controlled substances law.