Akhil Amar’s Defense of the Individual Mandate

Yale law professor Akhil Amar is one of the truly great constitutional law scholars of his generation, and I benefited enormously from taking his classes when I was in law school. Unfortunately, his recent LA Times article defending the constitutionality of the Obamacare individual mandate is not an example of his better work. I was going to write a response. But most of what I planned to say has already been well said in this post by Timothy Sandefur of the Pacific Legal Foundation (though I would have preferred it if both Amar and Sandefur had dialed down some of their rhetoric). I will add just a couple of points to Sandefur’s critique.

First, Amar asserts without any supporting argument that the mandate is a “tax” because the framers intended to create a “sweeping taxing power.” That, however, fails to come to grips with all the many reasons why the monetary fine imposed by the mandate is a penalty, not a tax. Under Amar’s analysis, pretty much any mandate can be considered a tax so long as the penalty for violating it is a monetary fine. That conclusion is at odds with both the text of the Constitution and Supreme Court precedent as recent as 1996. For details, see the amicus brief I recently wrote on behalf of the Washington Legal Foundation and several members of Congress in the Thomas More Law Center case (pp. 19-26). The framers may have a created a “sweeping” power to impose taxes for a variety of purposes, but that doesn’t mean that any monetary penalty automatically qualifies as a tax.

Second, Amar’s weakest argument comes when he tries to analogize Judge Roger Vinson’s decision striking down the mandate to the Dred Scott case:

In 1857, another judge named Roger distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America’s two major political parties was unconstitutional. The case was Dred Scott vs. Sanford, involving a slave who sued for his freedom because he had lived with his master in places where Congress had banned slavery. In an opinion by Chief Justice Roger Taney, the court not only ruled against Scott, saying that even free blacks were not citizens and therefore had no right to sue; it also declared the Missouri Compromise, which had outlawed slavery in Northern territories, unconstitutional.

History has not been kind to that judge. Roger Vinson, meet Roger Taney.

I agree that both Vinson and Taney are named Roger. Otherwise, the analogy doesn’t work at all. Perhaps the most important difference is that Dred Scott involved congressional power over federal territories, where Congress has plenary power similar to that which state legislatures have within their own states. Article IV, Section 3, Clause 2 of the Constitution gives Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Thus, the usual constitutional limits on federal authority did not apply. The Dred Scott situation would be analogous to the individual mandate case only if the mandate were limited to the District of Columbia and federal territories such as Guam (in which case it would probably be constitutional).

In addition, Vinson did not strike down “the basic platform of one of America’s two major political parties.” He merely invalidated one of many possible ways to achieve that party’s policy objectives in the field of health care, a point Vinson himself took care to emphasize in his opinion. The Democrats are left with many other options for extending government control over health care, and even for forcing insurance companies to cover people with preexisting conditions. By contrast, Dred Scott foreclosed pretty much any way for the federal government to ban slavery in the territories short of disobeying the Court. Whether Vinson “distorted the Constitution” or “disregarded precedent” depends on the validity of Amar’s other arguments, which I think are not very compelling for the reasons outlined by Sandefur. But even if Vinson was guilty of these sins, the only similarity to Taney’s performance in Dred Scott would be that both judges got a case wrong. By that standard, any mistaken judicial decision striking down a federal law can be analogized to Dred Scott.

UPDATE: I wrote this post before seeing David Bernstein’s recent post criticizing Amar’s op ed, which also takes aim at the Dred Scott analogy, albeit on somewhat different grounds. For what it’s worth, I think David’s critique and mine are mutually reinforcing. There is a serious case to be made in defense of the mandate. But analogies to Dred Scott don’t do much to advance the discussion.