Perhaps the worst constitutional defense of Obamacare you will ever read

November 23, 2011 @

Now that the Supreme Court has officially taken up the question of Obamacare, we are in store for even more legal analyses attempting to predict which way the justices will rule, or argue which way they ought to rule.

A quick prediction of my own: Few, if any, of these analyses will be as worthless as the one Einer Elhauge offers in today’s New York Times.

Elhauge, a law professor at Harvard University and founding director of Harvard’s Petrie-Flom Center in Health Law Policy, makes one point that is patently — inane? specious? vacuous? let’s go with specious — and one point that unintentionally undercuts his own argument. Let’s look at each.

First, the patently specious point:

For decades, Americans have been subject to a mandate to buy a health insurance plan — Medicare. Check your paystub, and you will see where your contributions have been deducted, whether or not you wanted Medicare health insurance.

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.

Now, I have followed the Obamacare debate pretty closely, including attending the oral arguments at the 11th Circuit Court of Appeals this summer, and I have never heard or read even a single person offering the rationale that Elhauge claims “many opponents” of the law make. However, I am willing to stipulate that the director of a center on health law policy may have been privy to more arguments than I have been, and that there may in fact have been some Obamacare opponents who have concocted such a line of reasoning.

Read More at By Kyle Wingfield,

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