I am not an expert in US Constitutional law, but I am not totally uninformed either. And yet (or because of this) I was shocked to see the completely crazy “analysis” that appeared, as an opinion piece, in the Wednesday, November 16th issue of the New York Times. The author is the anti-trust and health law scholar Einer R. Elhauge of the Harvard Law School. I am somewhat relieved to find that he is not a constitutional law expert either.
Nevertheless, the article is notable for how casually it treats the legal issues. The fundamental thesis seems to be that the courts have no role is constraining the federal government in the area of economic regulation, mandates and interstate commerce (or even the absence of commercial activity). The courts should not second-guess the legislative process. (I guess Professor Elhauge has never heard of public choice nor does he think that economic liberties have any claim to be protected by something more than the “will of the people.”)
But none of this is all that strange until you see what a mockery Professor Elhauge makes of constitutional law and how unaware he seems to be of the slippery slope that has transformed our Constitution and the fundamental relations between the federal government and the states. I say “unaware” of this process but I suspect that he is all in favor of the process.
Even this is no so strange. But what is strange is the joking quality of his “legal analysis.” Consider (italics added):
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. But is that a distinction of substance? After all, we don’t have much choice but to get a job if we want to eat.
Even if you accept this distinction, it means that Congress can mandate the purchase of health insurance as long as it conditions that mandate on engagement in some commercial activity. So the challengers would have to admit that a statute saying that “anyone who has ever engaged in commercial activity must buy health insurance” would be constitutional. This is effectively the same as the mandate, because it is hard to believe that anyone in this nation has never bought or sold anything in his life.
Even if there are a few hardy folks who grow or make everything they need, their activity can still be regulated because it affects commerce. The Supreme Court held in Wickard v. Filburn, in 1942, that growing and consuming your own wheat can be regulated under the commerce clause because it reduces demand for wheat and thus affects commerce. Accordingly, a statute saying, “anyone who has engaged in any activity that affects commerce must buy health insurance” would clearly be constitutional, and cover everyone, just like the new mandate. In the end, the opponents’ argument is merely about how the statute is phrased, rather than about its substance. ….
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. However, that fear would remain even if you accepted their constitutional argument, because their argument would allow Congress to force us to buy broccoli as long as it was careful to phrase the law to say that “anyone who has ever engaged in any activity affecting commerce must buy broccoli.”
So building upon a very bad decision Wickard v. Filburn, the logic of this constitutional law leads to the Bedlam that it all just a matter of how a law requiring the purchase of health insurance is phrased and whether you have EVER OR AT ANY TIME engaged in ANY COMMERCE (since everything is interstate!). Of course, even Professor Elhauge realizes the absurdity of all this. But for him this works in the direction of almost-anything goes. Sure the mandate is constitutional. But no worries if it is bad, the will of the people will save us.
But not even God will save us from people like Professor Elhauge.