Adam J. White does a good job of explaining why the Obamacare individual mandate at the federal level is really and literally “unprecedented.” It’s a long article, but well worth reading if you want to understand the legal issues facing the Supreme Court when it hears National Federation of Independent Business v. Sebelius.
They’re large; really, really large. At issue isn’t just Obamacare, either—it’s the slow and insidious expansion of the federal government’s power under the Commerce Clause which has been going on for much of the twentieth and twenty-first centuries:
Neither the federal government nor the numerous lower courts, the states conclude, “have identified a single other federal law throughout our Nation’s entire history that simply compels individuals to enter into commerce.” That dearth of precedents is all the more instructive, they argue, because “Congress surely has not lacked incentives to exercise such a ‘highly attractive power.’ ” In two centuries, Congress never lacked the creativity to fashion indirect ways to achieve its preferred ends—think of the perennial threat to withhold highway funds as a way to cajole the states into forcing drivers to wear seatbelts—but it never claimed for itself the power to achieve its economic aims through direct commands to the citizenry at large.
But the Commerce Clause, as important as it is, is only the beginning. There’s also this:
And even if the individual mandate does not fit squarely within the Commerce Clause, the government further argues, that mandate fits within the powers granted by the Necessary and Proper Clause—that is, the Constitution’s ancillary provision authorizing Congress to “make all Laws which shall be necessary and proper for carrying into Execution” Congress’s other enumerated powers…
The states challenging Obamacare respond with several arguments that the mandate is neither “necessary” nor “proper.” Ultimately the most powerful of these is the slippery slope: The government’s argument offers no legal limits to prevent the imposition of similar mandates in other markets displaying similar characteristics. Lacking any “limiting principle,” the government’s theory of the power to mandate the purchase of health insurance “obliterates any meaningful boundaries on Congress’ limited and enumerated powers,” a theory that “cannot be squared with the Constitution.”
Then there’s the tax question:
If the Supreme Court finds that the individual mandate is justified under neither the Commerce Clause nor the Necessary and Proper Clause, then the government has one remaining defense: its constitutional power to “lay and collect Taxes, Duties, Imposts, and Excises.”
White goes on to explain several reasons why it’s not a tax—and the reason isn’t just because Obama and the Democrats said it wasn’t one when they passed it, and are now claiming for the sake of the lawsuit that it is.
But even if the Court decides in favor of the plaintiffs and strikes the mandate down, there’s the question of remedy:
Should only the individual mandate be struck down, or should the Court strike down Obama-care in its entirety? To borrow the technical term, is the individual mandate “severable” from the rest of Obama-care?
The lower courts that ruled variously on these issues were hampered by the fact that the case truly was “unprecedented.” Now the Supreme Court, which can set precedent for the rest, will need to do so. This not only has the potential to be one of the biggest cases in recent memory; it also points out one of the reasons this coming election is so important: whoever becomes the next president will probably get to appoint a number of new Supreme Court Justices, who will serve for life.
[NOTE: Note, also, the emphasis on the federal nature of the individual mandate in the case of Obamacare. It is this federal nature that makes the challenge powerful. There are no such prohibitions on states, although you may indeed find an individual mandate at the state level to be undesirable, and would like to see it struck down. But, as I’ve said many times before, the individual mandate at the state level used to be considered a conservatively-approved approach to health care insurance, and a way to keep insurance both affordable and in the hands of private insurers as an alternative to a public option. Obamacare has caused many conservatives who previously supported and recommended state mandates to reconsider them and view them more negatively, post-Obamacare. But legally there is a huge difference, which can be seen in the NFIB v. Sebelius case pending.]