But.... I happen to believe the individual mandate is unconstitutional. I certainly believe that it falls well outside Congress' "commerce clause" power. Though many legal commentators dismissed any suggestion that the mandate was unconstitutional that conventional wisdom was turned on its head last week when several justices on the Supreme Court asked very pointed questions about the constitutionality of the law. Indeed many court observers subsequently concluded that the individual mandate was likely to be overturned.
Now, proponents of the law have decided to start attacking the Supreme Court for daring to question an act of Congress, for behaving like a legislative body. Even President Obama broke his (very short period of) silence on the matter and warned the court to not overturn a law passed by a democratically elected legislature - Obama said to do so would surely be judicial activism. Legal analyst Jeffrey Toobin wrote "Acts of Congress, like the health-care law, are presumed to be constitutional, and it is—or should be—a grave and unusual step for unelected, unaccountable, life-tenured judges to overrule the work of the democratically elected branches of government."
These attacks on the court are as unjustified as was the confidence in the constitutionality of the mandate. It is quite correct that the Supreme Court has recognized tremendous authority within the commerce clause. The commerce clause allows for a federal minimum wage, it empowers Congress to limit crop yields for personal use, to protect our air and water, and to prohibit discrimination by private businesses. But what the Supreme Court has never recognized is a Congressional power under the commerce clause to compel a citizen to first engage in commerce and then regulate it. The individual mandate requires citizens to purchase a private product - health insurance - from a private company - an insurer. This is quite unprecedented. Under the 10th amendment such a power would be considered as reserved to the states like most health and welfare powers such as education. The Supreme Court has frequently expressed limits on Congress' commerce clause power. In US v. Morrison, NLRB v. Jones & Laughlin Steel Corp., and US v. Lopez (you look them up!) the court struck down attempts to expand the scope of the commerce clause and specifically referenced traditional state powers.
Had Congress simply imposed a new tax to fund health care subsidies and then granted a tax credit to anyone who show proof of health insurance there is no doubt it would have been a constitutional exercise of the power to tax. Had Congress made Medicare universal it would have been constitutional - as it would be a government provided service. The government collects taxes and provides Social Security - that's constitutional. But the government cannot compel us to purchase stocks or bonds or to start a 401k. There is a line between providing a service and compelling an action. The individual mandate crosses that line.
I offer my opinion not as a casual observer but as someone who wroked in healthpolicy for a decade and as a professor who regularly teaches commerce clause precedent in several classes. I'm well aware of the arguments in favor of the court upholding the mandate and I am well aware of the arguments for overturning the mandate - I find the arguments against the constitutionality of the mandate to be the more sound.
All this is to say no one should have believed the mandate would be a constitutional slam dunk.
Now that it's in question no one should be attacking the court for questioning the law. With all due respect to President Obama, Jeffrey Toobin, E.J. Dionne and the others aghast at the court I will defer to Alexander Hamilton in Federalist 78:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority... Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm... that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.In other words it is up to the courts, and not Congress, to decide whether an act of Congress falls within the powers afforded under the Constitution. The fact that Congress was elected and the justices were not is a meaningless point. The courts exist as an unelected body precisely because those subject to election may at times be driven to enact unconstitutional laws in response to electoral pressures - or to create electoral pressures.
If the Supreme Court were to strike down the individual mandate it would be no more unprecedented or outrageous than when the courts over-ruled democratically elected legislatures with regard to white primaries, school segregation, inter-racial marriage, the right to privacy, or the line-item veto.
Rather it would be the courts acting as they were intended to act - as the final arbiter of the meaning of the constitution and all laws made under its delegation of power. I'm used to making this argument in response to conservative attacks on the court... clearly are equally in need of this basic civics lesson.