Akhil Amar’s embarrassing attempt to defend Obamacare

Author: Timothy Sandefur

Prof. Akhil Amar has written some great things–his books The Bill of Rights and America’s Constitution: A Biography are among my favorites–but his article in the L.A. Times is, to put it mildly, not among his best. In it, Amar presents the Obama Administration’s view of the Florida decision invalidating the Individual Mandate, and with all the bluster and cheap rhetoric of someone who has no serious case to make.

“There is nothing improper in the means that Obamacare deploys,” he writes. “Laws may properly regulate both actions and inactions…” Of course, that part’s true, but it’s beside the point. Congress doesn’t have a general power to write laws; it only has power to “regulate commerce…among the several states.” If the founders had intended to give Congress a general power to write laws, they would have. But what they chose to do instead was to give Congress specific, limited powers. The question here is whether a law that forces people to engage in commerce qualifies as a “regulation of commerce.” Amar merely dodges that question.

“…and in any event,” he continues, “Obamacare does not regulate pure inaction. It regulates freeloading. Breathing is an action, and so is going to an emergency room on taxpayers’ nickel when you have trouble breathing.”

Think about that: breathing is an action. Does Amar believe that Congress can put conditions on your choice to breathe?! There’s a word for governments that require every citizen to do something as a condition of continuing to breathe. The word is not “free”!

Nor is Amar’s reference to emergency rooms relevant. Obamacare has nothing whatsoever to do with this. Emergency room free-riding is a problem,* but emergency rooms are paid for by tax dollars.  Obamacare doesn’t work this way. It requires everyone to buy insurance from a private company as a clever way of subsidizing companies that are forced to insure people who are already sick. It isn’t a tax, for the simple reason that Obama and his supporters knew they couldn’t get a tax increase through Congress.

“Nor is there anything improper about requiring people to buy or obtain a private product. In 1792, George Washington signed into law a militia act that did just that, obliging Americans to equip themselves with muskets, bayonets, cartridges, the works.”

Once more, Amar is using a false analogy. The law he refers to was an exercise of Congress’ authority to “raise and support armies…provide for calling forth the militia…[and] provide for organizing, arming, and disciplining, the militia….” It was not passed under the power to “regulate commerce.” “Regulating” is different from “arming,” and Amar’s hasty writing is intended obscure this crucial difference: “regulating” means to make rules for activities that are voluntarily undertaken; by contrast, “arming” or “raising” means to compel actions people didn’t choose to undertake. The commerce clause–on which Obamacare is supposedly based–doesn’t give Congress power to compel people to engage in economic activity. At least, Amar hasn’t shown that it does give Congress that power, and his use of an example that actually involves different constitutional provisions actually undermines such an argument.

“Strictly speaking, Obamacare does not mandate the purchase of insurance,” Amar continues. “It says that those who remain uninsured must pay a tax. Vinson says this mandate cannot be upheld under Congress’ sweeping tax powers. Wrong again. A basic purpose of the founders was to create sweeping federal tax power, power that was emphatically reinforced by the 1913 Income Tax Amendment.”

Except that taxes exist to raise money for the government. Congress is using the IRS here not to raise revenue but to enforce regulatory compliance. If it works as intended, it won’t get the government any money! Congress never claimed at the time, in debates or in the law itself, that this law was an exercise of the taxing power, and even the Obama Administration’s lawyers have now stopped arguing that this is a tax. But even if it were a tax, it would be unconstitutional, since Congress may not impose a direct or capitation tax without apportionment.

“[Judge Vinson] mangles American history and constitutional structure,” Amar claims. “In a clumsy wave to today’s ‘tea party’ groups, he rhetorically asks whether Americans who fought a tax on imported tea in the 1770s would have authorized Congress in the 1780s to mandate tea purchases. Huh? Surely Congress was authorized to do the very thing that Parliament could not–tax imported tea.”

Of course Congress can tax tea. It can do so under a specific constitutional clause–Article I, sec. 8, cl. 1–that allows Congress “to lay and collect taxes, duties, imposts and excises.” But Congress can’t force people to engage in commerce–to buy tea or anything else. Why not? Because the framers wanted to create a government of limited, specified powers, and if Congress can force us to buy things, it can do anything, without limit. That’s Judge Vinson’s point, and Amar is much too sharp to not understand this. He is trying instead to obscure and confuse the issue, and why? Because he has no answer to the main question in all these cases: if Congress can do this, what can it not do? Amar nowhere even tries to address this issue.

Instead, he resorts to the saddest of rhetorical tricks–accusing the judge of being like Roger Taney in Dred Scott. Lawyers should have their own “Godwin’s Law”: whoever is first to accuse the judge of being like Dred Scott loses the argument. Amar starts out by saying his students know more about the Constitution than Judge Vinson, but what I wonder is whether Amar’s students will, like their teacher, use false analogies, set up straw men, ignore their opponents’ arguments, and resort to the equivalent of childish name-calling.

*Update: Emergency room free-riding is a problem that, like the Obamacare free-rider problem, is caused by federal law, which forces emergency rooms to treat all comers without regard to their ability to pay. But unlike with Obamacare, the emergency room free-rider problem is addressed by funding emergency rooms with tax dollars, not by any compelled purchases. As Charles Lane observed a few days ago, “Single-payer — and any reduction in liberty it might entail — would be clearly authorized under Congress’s power to raise revenue and spend it on the general welfare (Article 1, Sec. 8)…. [T]he threat to liberty, if any, comes not so much from the individual mandate itself, but from the other things Congress might do if it gets away with claiming authority for this measure under the commerce clause.”

Update 2: Thanks to Instapundit for the link. There’s more commentary from Ed Carson, David Bernstein, Ilya Shapiro, Ilya Somin, and Patterico.