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

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Article Highlights

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

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

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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.

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About the Author

 

Thomas P.
Miller
  • Thomas Miller is a former senior health economist for the Joint Economic Committee (JEC). He studies health care policy and regulation. A former trial attorney, journalist, and sports broadcaster, Mr. Miller is the co-author of Why ObamaCare Is Wrong For America (HarperCollins 2011) and heads AEI's "Beyond Repeal & Replace" health reform project. He has testified before Congress on issues including the uninsured, health care costs, Medicare prescription drug benefits, health insurance tax credits, genetic information, Social Security, and federal reinsurance of catastrophic events. While at the JEC, he organized a number of hearings that focused on reforms in private health care markets, such as information transparency and consumer-driven health care.
  • Phone: 202-862-5886
    Email: tmiller@aei.org
  • Assistant Info

    Name: Neil McCray
    Phone: 202-862-5826
    Email: Neil.McCray@aei.org

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