Julian Sanchez responds to Josh Marshall's argument that the constitutionality of Obamacare is under threat only because the GOP has succeeded in appointing a lot of people to the federal judiciary:
...the weird thing is, he’s right… sort of! It does seem like a surprising result, given the last century of Commerce Clause precedent, that anything plausibly describable as economic activity might be found beyond the power of Congress to micromanage. “Preposterous on its face,” even.
But isn’t it preposterous that it’s preposterous? Step back from that steady accretion of precedents and instead just ask how far a federal power to “regulate commerce…among the several states”especially in the context of separate and parallel powers to regulate commerce with foreign nations and Indian tribescan plausibly be stretched. Isn’t it the idea that “regulate commerce” could entail a power to require a private individual in a single state to buy health insurance that ought to seem kind of crazy? Shouldn’t we find it more intuitively preposterous that a provision designed for tariffs and shipping rules should be the thin end of the wedge for a national health care policy?
James Antle piles on:
...this should be a teachable moment for the American people. And it is one that should not be wasted on the "situational constitutionalism" whereby the party out of power conveniently rediscovers the Bill of Rights in between elections.
The Constitution imposes substantive, as opposed to merely procedural, limits on the federal government. It does not simply set the basic qualifications for being one of our federal masters, in the form of residency requirements and minimum ages. It doesn't just divide Congress into two chambers or the federal government into three branches. The Constitution specifies what the president, Congress, and the courts are allowed to do.
And Megan zeroes in on why small government types care about this:
I have been reading a lot of well-meaning liberals who are befuddled by the notion that conservatives are going after the mandate, when that runs the risk of bringing on single payer. Personally, I kind of doubt that, but this is completely beside the point. On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can't the government force you to do?
This doesn't seem to be a question that interests progressives; they just aren't very excited about economic liberty beyond maybe the freedom to operate a food truck. And so they seem genuinely bewildered by a reading of the commerce clause that narrows its scope, or an attempt to overturn the mandate even though this might lead us into a single payer system. If you view this solely as tactical maneuvering, perhaps it really is preposterous.And of course, for some conservatives, these operations are tactical, but for a lot, it's an actual horror at the ever-expanding assertion of government powers. I'd like it if they'd get equally horrified about, say, the TSA and the drug laws, but there you are: neither side is as consistently supportive of liberty as I'd like.