In What Sense is the Personal Health Insurance Mandate “Unconstitutional”?

Professor Randy Barnett clarifies his previous remarks regarding the unconstitutionality of Obamacare's individual mandate and adds why he now feels more strongly about his opinion.

When discussing the “constitutionality” of a governmental action, one must distinguish between three senses of “constitutionality”: (1) What the Constitution says and means; (2) what the Supreme Court has said and meant, and (3) whether there are five votes on the Supreme Court to uphold or invalidate the action. ... I have been very clear in my publications and media statements that I am not offering an originalist objection to the individual health insurance mandate.

Instead, I have objected that the mandate that individuals purchase health insurance from a private company is unconstitutional under existing Supreme Court doctrine–the second of the three senses of unconstitutionality. And, in response to confident predictions that the Supreme Court will uphold the mandate, I have suggested that they may be less inclined to do so if the bill continues to be unpopular, one or both houses of Congress flip parties, a serious repeal effort is blocked by a presidential veto or filibuster in the Senate, and the “benefits” promised by the bill have yet to be implemented. Everyone should know I think this last type of analysis should have nothing to do with whether a measure is or is not “constitutional,” but I do not deny these factors are relevant to whether the Supreme Court will uphold or invalidate an act of Congress. My point is that those who confidently predict that the Supreme Court will uphold this bill are not taking these sorts of factors adequately into account.

Part of my constitutional assessment (in the second sense) involves the unprecedented nature of this claim of power by Congress. (The other part is analysis of what the Supreme Court has said about the Commerce power since the New Deal.) Having made this observation back in December in my co-authored paper for the Heritage Foundation, my confidence in its accuracy has been increased by two developments. The first is the change of subject to the Tax power of Congress. Think about it. If the claim that this legislation was as clearly authorized by post-New Deal Commerce Clause doctrine as so many law professors seem to assume, then why almost immediately change the subject to the power of Congress to tax? This switch telegraphs a fundamental weakness of the Commerce Clause claim.

The second development is the inability of supporters of the bill to generate any examples of when the Commerce Clause power has been exercised in the past to mandate individuals engage in economic activity by entering a contract with a private company. True the early Militia Act mandated militia members provide their own private arms, but this was not an exercise of the Commerce Power. And we have been treated to the discovery of an early statute taxing sailors and spending the money on hospitals for their care. Of course, this is very much akin to how Medicare works (which is clearly “constitutional” in the second and third senses), and the regulation of navigation is squarely within the original meaning of the Commerce Clause (as I have shown in Restoring the Lost Constitution: The Presumption of Liberty), so this provision seems “constitutional” in the first sense as well.