Ballots, not judges, will decide this
Letter to the Editor

Wikimedia Commons

Article Highlights

  • Opponents of the individual mandate will have to win their fight in November 2012

    Tweet This

  • Too many judges have broadened the scope of the Commerce and Necessary and Proper Clauses

    Tweet This

Regarding your editorial "Judge Sutton's Imaginary Mandate" (July 5): Constitutional challenges to the individual mandate face steeper legal hurdles than just the "as applied" versus "facial" challenge distinction raised by Judge Jeffrey Sutton in the Sixth Circuit appellate opinion. There remains a long line of unfortunate and flawed Supreme Court precedents regarding the broad scope of the powers granted to Congress under both the Commerce Clause (a de minimus level for activities to "substantially affect" interstate commerce) and the Necessary and Proper Clause (bootstraps supplied by regulatory schemes). Several current "judicial restraint" conservative Justices--John Roberts, Samuel Alito and Antonin Scalia--were complicit in at least one recent expansive interpretation (Gonzales v. Raich, U.S. v. Comstock) of federal regulatory power. The trio also remain reluctant to launch a new round of indeterminate interpretations of constitutional clauses, based on fine distinctions such as those between "activity" and "inactivity," that would be hard to enforce consistently.

Judge Sutton may have feigned powerlessness as a mere federal appellate judge to help chart a clearer direction in muddled High Court jurisprudence, and he overstated the review standard for a law that the last congressional majority was hard pressed to pass with a straight face.

A more fruitful line of challenge to the mandate will involve whether its sweeping assertion of national regulation remains "proper" within the constitutional structure of power between the federal and state governments. Nevertheless, it remains most likely that opponents of the individual mandate and the other interwoven abuses of the Affordable Care Act will have to win this fight "old school" at the ballot box in November 2012.

Thomas P. Miller is a resident fellow at AEI.

Also Visit
AEIdeas Blog The American Magazine
About the Author

 

Thomas P.
Miller

What's new on AEI

Rebuilding American defense: A speech by Governor Bobby Jindal
image Smelling liberal, thinking conservative
image Stopping Ebola before it turns into a pandemic
image All too many reasons for pessimism about Europe
AEI on Facebook
Events Calendar
  • 20
    MON
  • 21
    TUE
  • 22
    WED
  • 23
    THU
  • 24
    FRI
Monday, October 20, 2014 | 2:00 p.m. – 3:30 p.m.
Warfare beneath the waves: The undersea domain in Asia

We welcome you to join us for a panel discussion of the undersea military competition occurring in Asia and what it means for the United States and its allies.

Tuesday, October 21, 2014 | 8:30 a.m. – 10:00 a.m.
AEI Election Watch 2014: What will happen and why it matters

AEI’s Election Watch is back! Please join us for two sessions of the longest-running election program in Washington, DC. 

Wednesday, October 22, 2014 | 1:00 p.m. – 2:30 p.m.
What now for the Common Core?

We welcome you to join us at AEI for a discussion of what’s next for the Common Core.

Thursday, October 23, 2014 | 10:00 a.m. – 11:00 a.m.
Brazil’s presidential election: Real challenges, real choices

Please join AEI for a discussion examining each candidate’s platform and prospects for victory and the impact that a possible shift toward free-market policies in Brazil might have on South America as a whole.

No events scheduled this day.
No events scheduled this day.
No events scheduled this day.
No events scheduled this day.