Healthcare Showdown at the Supreme Court – Part 1: The Individual Mandate

Next week, the Supreme Court will hear arguments on the constitutionality of the new federal health care law, known as the Affordable Care Act (ACA). This is one of the most momentous showdowns in Supreme Court history – the Court’s decision will be a major landmark in determining the scope of federal power. This week, I’m going to preview the four major issues the Court will consider. The first issue is the so-called “individual mandate.”

The individual mandate is the centerpiece of ACA. It creates a legal duty for all individuals in the US to obtain health insurance that meets federal standards by 2014. The constitutional issue is whether Congress has the authority to impose such a mandate. The Constitution grants only certain “enumerated powers” to Congress. In the case of ACA, the government relies mainly on the constitutional power to regulate “commerce . . . among the several states.”

Granted, unless your doctor happens to live in a different state, most individual healthcare transactions do not take place “among the several states.” However, the Supreme Court has held that Congress has the power to regulate economic activity that, in the aggregate, will affect interstate commerce. In 1942, the Court upheld New Deal regulations that dictating the amount of wheat a person could grow for his own family’s consumption! (Wickard v. Filburn). However, opponents of the law point out that Congress has never used its power to compel individuals to purchase a product, whether they want it or not. If they can force us to buy health insurance today – they ask – what’s next? A mandate to eat our vegetables?

What Type of Originalist Are You?

Back in the 1980s when Ed Meese and others revived "originalism" as a way to shake off the hangover of the Warren/Burger courts, the focus was on original intent: what were the Founders thinking when they wrote those words? In recent years, the focus of originalism has shifted from the "intent" of the Founders to original public meaning: that is, what did the Constitution's words mean to those who ratified it?

I'm a fan of the newer version, but a recent essay by historian Saul Cornell tries very hard to trash the concept of "original public meaning." His point seems to be that there is so much information potentially bearing on public meaning, it leads to "cherry picking" the evidence to suit your argument. Cornell doesn't particularly like originalism of any kind, but he thinks the "intent" school is less arbitrary. (See comment at NRO).

What do you think? I realize that I'm assuming that you are sympathetic to "originalism" of some sort, but if not, please jump in and say why.