American People: Of Course the Individual Mandate Is Unconstitutional

Cato senior fellow Randy Barnett (also, of course, a Georgetown law professor and the “intellectual godfather” of the Obamacare litigation) blogs the results of a new USA Today/Gallup poll: 72% of Americans (including 56% of Democrats and 54% of those who think “the healthcare law is a good thing”) think the individual mandate is unconstitutional.  This follows a Rasmussen poll showing that a majority of Americans favor repeal and an AP poll from August that found 82% to opine that the federal government “should not have the power to require all Americans to buy health insurance.”

Now, no court should rule a given way simply because a majority—even an overwhelming majority—of people want it to.  Indeed, the judiciary is by design the non-political branch of government, one often required by the Constitution to reach counter-majoritarian results.  But to the extent that in this unprecedented litigation over an unprecedented assertion of federal power, where the outcome could turn on whether something is “proper”—the intepretation of which term may depend on concepts such as “legitimacy” and “accountability”—the sustained, strong views of the public may, at the margins, matter.

Are you listening, Justice Kennedy Supreme Court?