Perhaps the worst constitutional defense of Obamacare you will ever read

Now that the Supreme Court has officially taken up the question of Obamacare, we are in store for even more legal analyses attempting to predict which way the justices will rule, or argue which way they ought to rule.

A quick prediction of my own: Few, if any, of these analyses will be as worthless as the one Einer Elhauge offers in today’s New York Times.

Elhauge, a law professor at Harvard University and founding director of Harvard’s Petrie-Flom Center in Health Law Policy, makes one point that is patently — inane? specious? vacuous? let’s go with specious — and one point that unintentionally undercuts his own argument. Let’s look at each.

First, the patently specious point:

For decades, Americans have been subject to a mandate to buy a health insurance plan — Medicare. Check your paystub, and you will see where your contributions have been deducted, whether or not you wanted Medicare health insurance.

Many opponents dismiss this argument because Medicare (unlike the new mandate) requires the purchase of health insurance as a condition of entering into a voluntary commercial relationship, namely employment, which Congress can regulate under the commerce clause. Thus, they say, the Medicare requirement regulates a commercial activity, whereas the new mandate regulates inactivity.

Now, I have followed the Obamacare debate pretty closely, including attending the oral arguments at the 11th Circuit Court of Appeals this summer, and I have never heard or read even a single person offering the rationale that Elhauge claims “many opponents” of the law make. However, I am willing to stipulate that the director of a center on health law policy may have been privy to more arguments than I have been, and that there may in fact have been some Obamacare opponents who have concocted such a line of reasoning.

Anyway, that’s not what makes his point patently specious.

What makes it specious is that Elhauge would have the reader believe this is the best, or maybe only, argument about the difference between Medicare and Obamacare. That is bunk. The best, clearest argument that’s been made about the distinction between Medicare and Obamacare is that Medicare is a government program, and the paycheck deductions are a tax to pay for that government program.

No one on the right argues that Congress can’t enact a tax to pay for a government program such as Medicare. What nearly everyone on the right argues about Obamacare, however, is that a) health insurance is a private product, and there’s no constitutional authority to mandate the purchase of a private product; and b) the consequences written into Obamacare for failure to comply with a mandate are not a tax but, in Congress’s own language, a “penalty.” Congress used the word “tax” elsewhere in the law, but not in the section that enforces the mandate. (Whether that’s because, as in other cases, congressional Democrats were sloppy in drafting the law or because they simply didn’t want to be seen enacting a tax is debatable, but irrelevant to the legal discussion.)

So, to distinguish between Medicare and Obamacare, one doesn’t need to resort to the tortured argument Elhauge offers up so that he can knock it down. There’s a much more straightforward and prevalent argument he avoids entirely, while making sure to weave the specious “anyone who has engaged in any activity that affects commerce must buy health insurance” claim into the rest of the piece.

Now, about his unwitting undercutting of his own position. Here’s what Elhauge writes:

Opponents of the new mandate complain that if Congress can force us to buy health insurance, it can force us to buy anything. They frequently raise the specter that Congress might require us to buy broccoli in order to make us healthier. …

There are, of course, limits to what Congress can do under the commerce clause. If it tried to enact a law requiring Americans to eat broccoli, that would be likely to violate bodily integrity and the right to liberty. But the health insurance mandate does not require Americans to subject themselves to health care. It requires them only to buy insurance to cover the costs of any health care they get.

And Elhauge thinks conservatives are the ones making distinctions without differences?

Here, I defer to Mickey Kaus, because I’m not sure anyone can improve on his rebuttal to this point:

Well, OK then! As long as we can just leave it rotting in the fridge.** … But it’s a little suspicious — and surely not a selling point — that under Elhauge’s argument the only limits on government would be the rights — like “bodily integrity” and privacy — that liberal lawyers have dreamed up but not the limit — i.e. whether or not something is “interstate commerce” — the Founders dreamed up.

** — Rotting broccoli might breed disease and suppress appetites, inhibiting interstate commerce. Could Congress ban every means of disposing of the broccoli (that it has made you purchase) other than eating it? Is that any different from making you eat it? To enforce the right to “bodily integrity,” would the courts have to step in and void at least some of these rules for broccoli disposal, even if they are obviously regulations of commerce and do not, in themselves, violate bodily integrity? Elhauge’s rule may not get the courts out of the complicated business of meddling with federal regulations and striking down some of them. They’d just be meddling on grounds that he likes. (emphasis original)

Is this the best the law’s most erudite defenders can come up with?

– By Kyle Wingfield

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