To grasp just how mendacious and incoherent the constitutional argument against the Affordable Care Act is, consider the plaintiffs’ argument today concerning “severability,” that is, whether, if the insurance mandate is struck down, whether the whole Act must be struck down.
The mandate is so intimately tied up in the whole scheme, argued lawyer Paul Clement, that all of the other provisions — community rating, guaranteed issue, the insurance exchanges, risk adjustment, the works — will also have to go.
Now also recall that the supposed argument here is that the mandate exceeds the federal government’s power to regulate “interstate commerce.” It is not an argument about personal liberty at all: that would be a substantive due process argument, in which the legislature receives enormous deference from the courts.
No one could possibly deny that if the federal government decided to write rules for all insurance companies concerning, say, community rating, guaranteed issue, insurance exchanges, and risk adjustment, that that would constitute regulation of interstate commerce. That is the quintessential form of regulation of interstate commerce. And the plaintiffs today have argued that the individual mandate is necessarily bound up with all of these forms of regulations, which is why it cannot be severed.
So here is the conservative argument: something that is necessary for the regulation of interstate commerce is not part of the power to regulate interstate commerce.
This, in short, is a revolution from above.
If the Act falls, it will not be because the Obama Administration did something wrong. It will not represent a “crisis of liberalism.” It will not be because the Democratic Party cannot govern. It will not be cause for any recriminations or hang-wringing.
It will be because five old men have decided that the Constitution does indeed “enact Mr. Herbert Spencer’s Social Statics,” and have decided to force their reactionary views on the rest of the country.
And that is all you need to know.