The Insurance Mandate and the U.S. Constitution - Unpacked

 Yale Law Professor Akhil Reed Amar








Ezra Klein interviews Yale law professor and constitutional scholar, Akhil Reed Amar, who explains his view on the constitutionality of the Affordable Care Act's insurance mandate in layman's terms:

At any given nanosecond, millions of Americans are out of state. Most of my students at Yale are out of state. Three days a week, I am out of my home state. And if I or my students or any of these Americans fall sick, we go to a local ER. That’s an interstate issue. Similarly, if we don’t cover preexisting conditions, we have a lock-in for labor mobility — many workers will be unable to take better jobs out-of-state and thereby contribute more to their families and to the economy. And that’s what the Interstate Commerce Clause was all about: Getting rid of the impediments to genuine interstate commerce, to the free movement of goods and labor.

. . . 

My friend Justice Kennedy seems to be worried we’re crossing some rubicon if the government can force me to buy from a private person. And I say, gee, the government takes my money all the time. They took my money and gave it to Detroit. If they can do that, how is it any different in the Constitution or in logic if they tell me to do it on my own.

. . .

The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document,. it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.

In paragraph 28 of McCulloch, Chief Justice John Marshall writes:

A constitution [is] intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. [It is wrong] to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.

And in paragraph 55 he says that the main security against an abusive legislature “is found in the structure of government itself. In imposing a tax” — or, I would add, a mandate — “the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation.” And against bad mandates and bad broccoli laws.