Tuesday, April 6, 2010

Individual Mandate Continued

Dylan Matthews writes:
At the very least, Scalia and Kennedy are likely to side with the court's four liberals should an individual mandate case come up, meaning the mandate should survive, easily.

Dylan points to Gonzales v. Raich, in which Scalia said that the Federal government could regulate marijuana sales within a single state, for his conclusion.

FLG has seen Scalia speak on this specific case. He said something like, "I'm a Fed appointed and confirmed by Feds. If you were concerned about States' rights, then you should've never passed the 17th amendment." FLG found it funny that Scalia personalized his explanation with the second person pronoun to a kid who was at most 22 regarding something that passed in 1912 or 1913. So, prima facie, this appears to support Dylan's conclusion.

However, I still think that supporters of the individual mandate, or at least those who come down on the side that it is constitutional, need to understand that there is a fundamental difference between the federal government saying that people cannot engage in an economic activity or that if an actor choose to engage in a certain activity, then they must also do something else AND saying that all citizens must buy a private good or service as a condition of citizenship.

Under the logic FLG has seen used to justify the mandate constitutionally, then the government also has the power to force people to buy cars in lieu of a direct stimulus or subsidy. Or as George Pal pointed out, force people to buy gym memberships to promote public health. Do pro-mandate people really want to argue that the federal government has the power to do these things?

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