Monday, July 02, 2012

Broccoli-robbed! The Wall Street Journal's beef with John Roberts

In the wake of Chief Justice John Roberts' division of the mandate baby, the Wall Street Journal editorial board laments:
From now on, Congress can simply regulate interstate commerce by imposing "taxes" whenever someone does or does not do something contrary to its desires.
That's true!  Also on target is the editorialists' complaint against Roberts' sleight-of-hand (which I noted myself on Saturday):
[Roberts] also temporizes that "taxes that seek to influence conduct are nothing new."

True enough, but the punishments in the tax code for inactivity come in the form of not being able to claim benefits that Congress in its graces bestows. Such as: If you don't borrow to buy a home, you don't get a mortgage interest deduction.

Congress has never passed a tax on a lack of gasoline or a tax on a failure to buy gasoline, any more than Congress can regulate inactivity under the Commerce Clause by telling people to buy gasoline or else pay a penalty.
 This reality-based analysis, however, serves a fantasy:
The reality is that Washington would love to regulate the ordinary economic choices that used to be beyond its purview, and now it will be able to abuse the ad hoc "tax" permit that the Chief Justice has given it.
I'd like to propose a  bet to the WSJ editorial board: that Congress will not impose another universal purchase mandate in our lifetime (mandates that are a condition of entering a particular market, such as auto insurance for car owners, are a different story).  As Donald  Verrilli argued in his reply brief, the health insurance market is unique, because  the community at large foots much of the healthcare bill for those who lack it, and no "parade of horribles" is likely to follow from this one purchase mandate, as evidenced by state governments' disinclination to impose purchase mandates for consumer products. In her dissent, Justice Ginsburg widens the scope of this reassurance, pointing out that horrible consequences can be extrapolated from the passage of virtually any new law:
As the controversy surrounding the passage of the Affordable Care Act attests, purchase mandates are likely to engender political resistance. This prospect is borne out by the behavior of state legislators. Despite their possession of unquestioned authority to impose mandates, state governments have rarely done so. See Hall, Commerce Clause Challenges to Health Care Reform, 159 U. Pa. L. Rev. 1825, 1838 (2011).

When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically,would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Cf. Raich, 545 U. S., at 9; Wickard, 317 U. S., at 127–129. Yet no one would offer the “hypothetical and unreal possibilit[y],” Pullman Co. v. Knott, 235 U. S. 23, 26 (1914), of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate. Cf. R. Bork, The Tempting of America 169 (1990) (“Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”). But see, e.g., post, at 3 (joint opinion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ.) (asserting, outlandishly, that if the minimum coverage provision is sustained, then Congress could make “breathing in and out the basis for federal prescription”) (p. 30).
The conservative imagination has grown feverish over the individual mandate for one reason alone: because Barack Obama acceded to it and made it his own.  Therefore, it's an apocalyptic assault on liberty.

1 comment:

  1. "The conservative imagination has grown feverish over the individual mandate for one reason alone: because Barack Obama acceded to it and made it his own."

    Oh, come on! You exaggerate! You know full well that if any other Democrat became President, acceded to the individual mandate, and made it his or her own, the conservative imagination would have grown feverish over it.