In past articles, I have mentioned that the Supreme Court can conceivably delay a decision on the constitutionality of Obamacare if they determine that the penalties through the tax code essentially are a tax and, therefore, the Anti-Injunction Act would put off the issue until 2015. To do so, the Obama Administration would have to prove that the penalty is a tax, something they argued during the debate it was not, but what they asserted in initial challenges to the law. The issue was sort of dropped when Obama began losing in the lower courts, but the Supreme Court unilaterally resurrected the issue now. Another article talked about possible Tenth Amendment challenges specifically through requirements that states increase Medicaid coverage. This involves the so-called coercion theory where the federal government using the carrot and stick of revenue sharing to force states to conform their programs to federal dictates. I thoroughly believe that this may be a better winning argument against Obamacare than relying on attacks on the individual mandate under the Commerce Clause.

Intuitively, the individual mandate would make no constitutional sense. That is, how can the government compel anyone to purchase something so that they can then regulate it? Rightly or wrongly, Supreme Court jurisprudence is not on the side of the challengers. Before people go off railing about the activist Court during the New Deal expanding federal powers under the Commerce Clause, there are also recent decisions that leads me to believe that the Court will actually uphold the mandate as constitutionally permissible under the Commerce Clause. Of course, if the government prevails in their arguments, then there is essentially nothing that the federal government cannot regulate under the Commerce Clause.

At the risk of being accused of being of the same mind as a liberal jurist, I am going to assert the position, after a considered analysis of Commerce Clause jurisprudence as it exists today, that the mandate will be upheld. First, the ability of Congress to regulate commerce has been considered plenary almost since our founding and dates back to cases like McCulloch vs. Maryland and Gibbons vs. Ogden. In the latter case, the Court stated: “This power is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than prescribed by the Constitution.” Simply applying these 18th century principles, Congress is within its authority to regulate health care, it being part of interstate commerce.

In a sense, there is some hypocrisy here. Conservatives often rail against activist courts. However, that is exactly what some are arguing for in this case. Long standing precedent has established that, under the Necessary and Proper Clause, it is for Congress, not the courts, to decide the specific means of regulation. That is not to say that this Court cannot or will not shift course and change an interpretation of Commerce Clause enforcement regimes. That has certainly happened before and that possibility- no matter how unlikely- would be the only hope the challengers have in this case.

Without a doubt, we will hear about a New Deal case called Wickard vs. Fillburn which has rough parallels to the current case. In that case, a farmer grew wheat for personal consumption exclusively. However, the Court then determined that by withholding his wheat from market for whatever reason no matter how worthy the reasoning, that act was affecting the price of wheat generally and that Congress had a right to regulate wheat prices generally. Hence, the farmer’s actions ran afoul of federal law and could be “punished.” Likewise, the “decision” of someone to not purchase health insurance could be regulated since that decision and action adversely affects the costs of health care generally. Of other interest, many people assert that our Founders would be turning in their graves if they ever thought a federal government would force its citizens to purchase a product. That was never, they assert, what the Commerce Clause authorized. They would be wrong. Shortly after the Bill of Rights was ratified, the Second Congress passed the Militia Act of 1792. This law required (and read this closely) that every able-bodied white male purchase at his own expense a (1) good musket or flintlock, (2) a bayonet and belt, (3) a knapsack, (4) a pouch, and (5) a large enough box to carry at least 24 cartridges. In short, under the Commerce Clause and in furtherance of the Second Amendment, our 2nd Congress- consisting of many who actually were present at the Constitutional convention- required Americans to purchase something, just as the 111th Congress is “requiring” those with means to purchase health care insurance.

Recently, even the Roberts Court has recognized federal authority under the Necessary and Proper Clause in the case of Comstock vs. the United States. In that case, a federal law required involuntary commitment of sex offenders to psychiatric centers after their prison term expired. The Court deferred to Congress’ power under the Necessary and Proper Clause by using a means-ends rationality analysis. Using the same analysis, it is hard to see how they cannot now defer to Congress’ enactment of Obamacare and the individual mandate.

There is also another case more recent that will hurt the chances of the challengers to the individual mandate: Raich vs. Gonzalez. In that case, a law against growth and personal use of marijuana was upheld because that act by the offender had an indirect effect on the price of marijuana on the open market and that the federal government had the right to invalidate laws that allowed possession of small amounts of marijuana under the Commerce Clause. I do agree with most libertarian arguments here in this case that are, oddly enough, in conflict with conservative mantra regarding strong drug laws. In fact, one can argue that the opposition to the individual mandate has a greater foundation in libertarian thought rather than conservative thought. Incidentally, it no less a conservative jurist than Scalia who gave great deference to Congress under the Commerce Clause in the Raich decision’s concurrence. For him specifically to now rule against the mandate would require a tremendous rethinking and twisting of his original constitutional analysis of the Commerce Clause. Put another way, he has boxed in his argument because of Raich.

One argument put forth is that if the mandate is upheld, there is virtually no activity or even inactivity that Congress cannot address and regulate. Admittedly, there are two cases where laws have been struck down under the Commerce Clause recently. One addressed violence against women and the other involved Gun-Free School Zones. The Court ruled that nothing prohibited states from enacting similar laws under their general police powers, but that the federal government could not under the Commerce Clause since no commercial action or inaction was implicated. Hence, there are limits on Congressional authority under the Commerce Clause.

During the 2010 elections, there was a mini-controversy over interpretation of the Commerce Clause in an unrelated matter- ending discrimination vis-a-vis the Civil Rights Act which was ostensibly enacted and upheld under the Commerce Clause. Then, Senatorial candidate and eventual Senator Rand Paul questioned the efficacy of using the Commerce Clause to achieve the ends Congress desired. In fact, I always thought the better vehicle would be under the 14th Amendment, Clause 5 which granted Congress authority to enact the necessary legislation. Regardless, this conservative desire to reign in the powers of Congress under the Commerce Clause is certainly not new and certainly not specific to Obamacare. I might also add that those arguments have been repeatedly, except in a few rare cases, been repelled by the Court.

Again, lest anyone peg me a liberal in this area, I am not. I have written in the past that health care reform could have been achieved without such massive intrusion into the lives of every American. I firmly believe that the law as enacted concentrated more on insuring the uninsured rather than controlling costs for those currently insured which would have benefitted everyone in the end. And initially, and even today, I view the individual mandate as an insult to personal liberty and the basic right “to just be left alone.” However, based upon the current state of Supreme Court jurisprudence- absent a massive reversal of precedent (which could happen in the abstract)- the individual mandate will be upheld.

Therefore, since the Court grants deference to Congress here, I believe that conservatives can use the eventual decision to their advantage. The Obama Administration may well crow in an “I told you so” posture, but that does not make the “so” not offensive to the majority of Americans who disfavor Obamacare. The better and best solution is to change Congress and rescind Obamacare in whole or part, preferably in whole.

We should know early on in the oral arguments when they begin which way certain Justices will go. Likewise, their silence may be just as deafening. Without a doubt, someone will ask that if the individual mandate is upheld, is there anything that the government cannot regulate using their powers under the Commerce Clause as a pretext. This is the great “Gotcha” question that must be articulated by the Court. Obviously, non-commercial laws like those struck down with regards to violence against women and gun free school zones are two obvious examples. But, what if at some point the Congress is convinced that the survival of the auto industry, for example, is vitally important to the health of the country? Could they then require that Americans buy only American built cars? Specifically, what are the limits on the power of Congress to regulate commerce? In reality, a defeat for conservatives before the Supreme Court could be turned into a victory by portraying a Congress run amok being antithetical to the will of a majority of Americans. Because they may have the power to “save us from ourselves” is no justification to invoke that power.