Tag: amar

Obamacare Defenders Grasping at Straw Men

Last week saw a splash of publicity for defenders of Obamacare’s constitutionality.  First, Yale law prof Akhil Amar had a hyperbolic op-ed in the L.A. Times, prompting a thorough fisking by Tim Sandefur, Ilya Somin, and me (among others). Then Harvard law prof Larry Tribe (who has written for the Cato Supreme Court Reviewhad one in the New York Times.  Here’s an excerpt:

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

Well, actually, Prof. Tribe, you’re asking and answering the wrong questions, as I say in my letter to the editor that appeared in the Sunday Times:

First, this is indeed a “novel” issue for the Supreme Court: Never before has the federal government asserted the power to require people to engage in economic activity under the guise of regulating commerce.

Second, those challenging the law do not question Congress’s power to regulate the “multitrillion-dollar health insurance industry,” but rather distinguish such regulation from a command for individuals to purchase that industry’s products.

Third, the difference between activity and inactivity is anything but “illusory”; if Congress can regulate mere decisions, then it can tell me, for example, that I shouldn’t spend time writing letters to the editor.

And finally, imagining that Justice Antonin Scalia would support the government here because he previously ratified prohibitions on the production and consumption of marijuana is to remove the very activity-inactivity distinction that he recognized in that earlier opinion.

Most recently, the Times itself editorialized against the views Randy Barnett presented to the Senate Judiciary Committee – and Randy replied here

Setting aside the issue of why Congress is only now getting around to holding hearings on the constitutionality of a fundamental piece of legislation it passed nearly a year ago, it’s clear now at least that the proponents of limitless, extra-constitutional government are running scared.  Obamacare delenda est.

Responding to Akhil Amar on Obamacare

Yale law professor Akhil Amar, one of the nation’s leading constitutional scholars and a “progressive originalist” of sorts – he joined with Randy Barnett and others on a brief supporting our view of the Privileges or Immunities Clause in the McDonald case – had a fiery op-ed about Judge Vinson’s decision in the Sunday L.A. Times.  More than fiery; I’d say intemperate, uncharacteristically so for the mild-mannered Prof. Amar.

Here’s an excerpt:

There is nothing improper in the means that Obamacare deploys. Laws may properly regulate both actions and inactions, and in any event, Obamacare does not regulate pure inaction. It regulates freeloading. Breathing is an action, and so is going to an emergency room on taxpayers’ nickel when you have trouble breathing.

I was all set to respond when I saw that Tim Sandefur had beat me to the punch on PLF’s blog.  Here’s an excerpt of that:

Instead [of offering a limiting principle to federal power if the individual mandate passes constitutional muster], he resorts to the saddest of rhetorical tricks–accusing the judge of being like Roger Taney in Dred Scott. Lawyers should have their own “Godwin’s Law”: whoever is first to accuse the judge of being like Dred Scott loses the argument. Amar starts out by saying his students know more about the Constitution than Judge Vinson, but what I wonder is whether Amar’s students will, like their teacher, use false analogies, set up straw men, ignore their opponents’ arguments, and resort to the equivalent of childish name-calling.

Good on ya, Tim!  Read the whole thingDavid Bernstein and Ilya Somin have similarly chimed in, and similarly cited Tim.

One thing for which I will commend Amar is his adoption of the term “Obamacare.”  I’ve never understood how this is a pejorative (unless said with a sneer, but by that standard anything can be pejorative). The one semi-accurate criticism I’ve heard is that the law was mostly written by Congress, not the White House – for which the president got plenty of heat.  But that just means it would be better to call it Pelosi-Reid-care, which presumably is no more or less pejorative.  In any event, that ship has sailed: Obamacare this abomination (note I didn’t say “Obamination”) will remain.