The Supreme Court is set to rule on whether the individual mandate in President Obama's healthcare law is Constitutional sometime next week. I've been predicting for a long time that the Supreme Court will at least overturn the individual mandate, and possibly the entire law. It's possible that they could still vote to uphold the mandate, but not very likely. Even many of the left wing talking heads on television and the print media have sounded the alarm recently on the increasing probability that the Supreme Court will at least declare the individual mandate unconstitutional. In my first blog post today, I'm going to address some of the claims being made by the left regarding the individual mandate and the members of the Supreme Court.
Many on the left are claiming that if the Supreme Court strikes down the individual mandate, it will be an example of judicial activism. They basically seem to be saying that the courts should give deference to Congress and allow them to pass any law they want to pass. They seem to be saying that that the Supreme Court has historically allowed Congress to write laws without any kind of judicial review. The truth is that there have been over 150 Congressional laws that have been struck down by the Supreme Court in it's history. These laws have been struck down by liberal courts as well as conservative ones. The concept of judicial review has been established for quite some time, and the Supreme Court striking down Congressional laws has never been a rare occurrence. If the individual mandate in Obamacare goes down, (or if the entire law goes down) it will simply be one more law in a very long list of Congressional laws that have been struck down by the Supreme Court.
Another claim made by the left is that if the Supreme Court votes to strike down the individual mandate, they will be breaking over 150 years of commerce clause precedent. This is simply false as well, because there is no precedent for this particular case. All of the other commerce clause cases at least involved some kind of activity, while this particular case is an example of the government trying to force people to engage in an activity. For example, the left often points to the case of Gonzalez vs. Raich as a precedent which shows that Congress has the authority to pass a law which contains an individual mandate for health insurance. However, in this particular case, the Supreme Court ruled that the commerce clause of the Constitution allows Congress to criminalize marijuana even where states approve it's use for medical purposes. I disagree with the Supreme Court's opinion in this particular case, as I don't believe that the commerce clause allows Congress to prohibit marijuana use within a particular state. However, even this case involved some type of activity, as growing and using marijuana is an example of activity. That's a very clear difference from the individual mandate, which is a clear example of Congress forcing people to engage in an activity. Thus, the Gonzalez vs. Raich case is not a precedent that the Supreme Court should look to when deciding whether the individual mandate is Constitutional.
Lastly, I'd also like to point out that there have been at least two recent cases where the Supreme Court put limits on what Congress can do under the commerce clause. The first case is a case from 1995 called United States vs. Lopez. In this particular case, Congress struck down a law passed in 1990 called The Gun Free School Zone Act. They ruled that the commerce clause of the Constitution does not give Congress the power to ban guns within a specific school. They ruled that a law banning guns within a specific school does not relate to "regulating commerce among the states." They realized that this particular law simply regulated a local activity, not "commerce among the states." The second recent case in which the Supreme Court placed limits on what Congress can do under the commerce clause is United States vs. Morrison, which was decided in the year 2000. In this particular case, the Supreme Court ruled that parts of the Violence Against Women Act were unconstitutional because they exceeded Congressional power under the commerce clause. The part of the law that was struck down was a provision that gave victims of gender-motivated violence the right to sue their attackers in federal court. As in the Lopez case, the Supreme Court ruled that this was simply a local activity which was not an example of "regulating commerce among the states."
In conclusion, it's quite clear that the left wing talking points on this particular issue are not based in reality.
