Andrew Koppelman on the Origins of the Case Against the Individual Mandate

Northwestern University Law Professor Andrew Koppelman has an article in Salon on the origins of the case against the individual mandate, in which he tries to show that Democrats could not reasonably have anticipated that the mandate would run into legal problems, and therefore cannot be blamed for not being more careful in the way they drafted the law.

There are several flaws in the article. Perhaps the biggest one is that, even on Koppelman’s own account, by the time the law was enacted in March 2010, several leading scholars had raised constitutional objections to it, including the VC’s own Randy Barnett and David Kopel. So too did a number of state governments and members of Congress. Moreover, according to a recent book by investigative reporter Ron Suskind, President Obama himself worried that the mandate would be vulnerable to legal challenges, even before it was enacted. Thus, the mandate’s legal troubles were not only foreseeable, but at least in part actually were foreseen by the president, who chose to go with the mandate despite the possible legal risk.

I may write a more detailed comment on the article later. For now, I would like to correct a mistake related to me personally. Koppelman writes:

On August 22, [2009] David Rivkin and Lee Casey wrote a Washington Post op-ed declaring that “[t]he federal government does not have the power to regulate Americans simply because they are there.” There were some follow-up posts on Volokh Conspiracy by Jonathan Adler and Ilya Somin, both of whom reluctantly concluded that the bill was clearly authorized by current law. (Both later changed their minds and will now tell you that the mandate is obviously unconstitutional!)

Unfortunately for Koppelman, I have never said that “the mandate is obviously unconstitutional.” Rather, I have repeatedly written that the issue is a close case on which both sides have some good arguments, although I think the anti-mandate argument is ultimately superior and should prevail. I even wrote a post entitled “The Individual Mandate Case is Not Easy,” which explains my view on this in some detail:

I do not mean to suggest that there isn’t a substantial case in favor of the constitutionality of the mandate. Some of the law’s defenders have made serious and insightful arguments on its behalf… The Supreme Court’s precedent on the relevant issues is complex and unclear enough that both sides can make a good case for their position. In my view, the anti-mandate side does have an overwhelming advantage under the text and original meaning of the Constitution. But textualism and originalism are not, and probably cannot be, the only interpretive methodologies used by the courts.

Jonathan Adler has also never said that the issue is an obvious one. It is, rather, some of our opponents who have weakened their position by implausibly asserting that the case in favor of the mandate is obviously correct.

It’s also worth noting that in the September 2009 post that Koppelman cites, I emphasized my view that the not-yet-enacted mandate would be unconstitutional. I was merely pessimistic about the prospects of winning in court because I thought it would run counter to the Court’s earlier decision in Gonzales v. Raich, which I had always strongly opposed. Later, I was persuaded by Randy Barnett’s December 2009 analysis, and my own re-reading of Raich with the mandate issue in mind, that Raich does not cover the present case. I explained the reasons for that shift here.