David Rivkin and Lee Casey are back on the WSJ editorial page, arguing once again that current health care proposals are unconstitutional. Specifically, they argue that an "individual mandate" would exceed the scope of Congressional power under current precedent. Further, they argue that this limitation cannot be avoided by using the taxing power to impose a tax on those who fail to purchase a qualifying health care plan.
As with their last effort in this vein, I am unconvinced. I agree with them that an individual mandate would, in many respects, "expand the federal government’s authority over individual Americans to an unprecedented degree," but I disagree that such a mandate would be unconstitutional under current precedent, particularly if adopted as part of a comprehensive health care reform plan.
There is a strong temptation to believe that every onerous or oppressive government policy is unconstitutional Were it only so. Even were the federal government confined to those powers expressly enumerated in the text, it would retain ample ability to enact many bad ideas into law, and current precedent is far more permissive. Opponents of current health care reform proposals should defeat them the old fashioned way, through the political process, and not depend upon salvation from the courts.
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