If there’s one thing lawyers love, it’s armchair quarterbacking nascent legal controversies. The healthcare lawsuits — counting, now, Judge Vinson’s deeply flawed fourth ruling on the case, the second for plaintiffs — are basically a dream come true, because they generate real controversies, and real debates, but (between you and me), are basically moot, because there’s no chance the Supreme Court strikes down the Affordable Care Act. Reversal of the President’s policy centerpiece, in an election year, and on Commerce Clause grounds, would represent something that hasn’t happened since FDR’s court-packing stunt. Don’t get me wrong, Roberts is crazy, and just regressive enough to want to roll it back. Alito and Thomas, too. But Kennedy and Scalia? We just need one.
Well, it’s still fun to talk about. A favorite argument of one of my friends, favored by plaintiffs, too, is the slippery slope argument. If Congress can mandate the purchase of insurance, what can’t it mandate? Can it order you to buy Sarah Palin’s latest crappy book? Or, God help us, The Overton Window? What about guns? (Cf. the 1792 Militia Act)
No. What South Dakota doesn’t get, and what’s absolutely critical in this case, is that the mandate does not occur in a vacuum, as any of the above hypotheticals would. There’s no congressional power that would support regulation of the book industry qua content (that’s why obscenity cases always concern state laws), or regulation of who can own guns, rather than under what circumstances. Perhaps an individual buy-terrible-books-by-Fox-News-hosts mandate, or a buy-lots-of-handguns mandate, could exist as a “necessary and proper” extension of either of the above powers. But in the absence of either, neither theoretical mandate would survive.
Insurance is just a different case. Congress can regulate insurance. It does, and it has. The mandate is a “necessary and proper” support for that power. Analogy to other mandates, like these, simply reads out the necessary and proper clause (much like Judge Vinson’s opinion), and that’s not how Commerce Clause jurisprudence works. But absurd hypotheticals are fun. Next?