Now, I won’t rehash here my recent SCOTUSblog essay, which provides links to a wealth of resources (op‐eds, briefs, academic articles, etc.) on this controversy. Instead I’ll summarize the legal arguments against the individual mandate — though other Obamacare provisions are also constitutionally problematic.
At base, the mandate exceeds Congress’s power to regulate interstate commerce under existing doctrine. The outermost bounds of the Supreme Court’s Commerce Clause jurisprudence — the “substantial effects” doctrine to which Professor Roosevelt alluded — stop Congress from conscripting an inactive person into commerce even if it purports to do so pursuant to a broader regulatory scheme.
The Constitution simply does not permit the government to compel citizens into transactions to remedy what would otherwise be an economic hole in a given piece of legislation. Although the Necessary and Proper Clause allows Congress to adopt reasonable means to regulate interstate commerce, it is not a blank check permitting Congress to ignore constitutional limits by manufacturing necessities. Indeed, any law — “necessary” or otherwise — that would transform Congress’s authority into an open‐ended power to legislate for “the general welfare” is unconstitutional.
While government lawyers emphasize the “uniqueness” of the health care market and the wisdom of the legislation at issue, “this case is not about whether the Act is wise or unwise … in fact, it is not really about our health care system at all. It is principally about our federalist system, and … the Constitutional role of the federal government.” Florida v. U.S. Dept. of Health & Human Services (Judge Roger Vinson’s decision striking down the individual mandate and with it all of Obamacare, Jan.31, 2011).
As the Congressional Budget Office put it nearly 20 years ago: