Listening to the arguments against the suits filed by all those state Attorneys General who are hoping to stop the Obamacare mandate on its tracks as unconstitutional, the following hypothetical (in law school final exam format) occurred to me:
Assume that the United States can lawfully force the people of the States to buy health insurance using Congress’s Commerce Power.
After a string of cartel-related violent incidents in northern Mexico, a National Militia Act is lawfully enacted by Congress and signed into law by POTUS, compelling every law-abiding American citizen age 18 and older to buy two firearms – a revolver and a rifle – and to acquire firearms training, to better provide for domestic security.
A similar law has existed in Switzerland for many years; and although a plurality of Americans support it, opposition to it has been strident, if not strong. Gun control advocates – most of them progressives – have painted the Act as a giveaway to gun manufacturers and a threat to peace and order in their communities.
What arguments would you make if you were the Attorney General for your state and your governor commanded you to file a lawsuit to attempt to invalidate the mandate on constitutional grounds? Do not refer to the Commerce Clause in your answer.
I think that’s a question we should all be asking ourselves. If the federal government can force us to buy health insurance to provide for our “welfare”, what’s to stop it from forcing us to buy anything else?
And if conservatives and libertarians don’t like it this time, what makes you think liberals will like it next time it happens? Because it very likely could happen. They say past is prologue. But when it comes to the law, that’s almost always true.
UPDATE: Insta-lanche! Thanks for the link, Professor Reynolds!
Make sure you click on the links the Prof put in his post. Turns out we’ve had a very similar Militia Act in the U.S. before; but as Professor Reynolds points out, Congress’s power to call a Militia – and arming it – is explicitly provided for in the U.S. Constitution. The power to compel the purchase of health insurance? Whether it exists remains to be seen. But that the Constitution does not expressly provided for it is a fact.
So I guess the “precedent” and “slippery slope” part of my post’s premise falls apart. We can have the shoe on the other foot even if the O-care mandate is ruled unconstitutional.
MORE: Danny Glover and Donald Sensing link with related content. Thanks!
ANOTHER ONE: Related: VIDEO: Prof. Randy Barnett of Georgetown Law on the Constitutionality of Obamacare.
myself, although Beatallica has to be one of the coolest tribute bands ever.
, which rocks in its very own way (no Metallica included).
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