Torturing the Law to Argue that Obamacare is Unconstitutional

| Mon Mar. 26, 2012 11:13 AM EDT

Paul Krugman comments on the Obamacare court case being argued today:

We know, or I think we know, that a single-payer system — in which the government collects taxes, and uses the revenue to provide health insurance — would be constitutional. I mean, I don’t think the court is about to strike down Medicare.

Well, ObamaRomneycare is basically a somewhat klutzy way of simulating single-payer. Instead of collecting enough revenue to pay for universal health insurance, it requires that those who can afford it buy the insurance directly, then provides aid — financed with taxes — to those who can’t. The end result is much the same as if the government collected taxes from those under the mandate and bought insurance for them....It is in no sense more interventionist, more tyrannical, than Medicare; it’s just a different way of achieving the same thing.

Agreed. This whole case has a serious air of angels-dancing-on-the-head-of-a-pin. The individual mandate is enforced by a tax penalty, and if it were called a tax penalty it would be OK. But since it's called a fine it's unconstitutional! Congress can tax everyone and then provide them with health insurance — outsourced to a private company if it wants to. But it can't require everyone to simply buy the exact same health insurance directly for the exact same price! Raich may seem like a precedent that binds conservatives to uphold Obamacare, but Raich was an as-applied challenge. The current case is a facial challenge!

And on and on. Maybe these distinctions really matter. But to an awful lot of people, they sure sound an awful lot like mere excuses to reach a conclusion they want to reach. That's because, broadly speaking, it's nearly impossible to argue that Obamacare is even close to pushing the envelope on Congress's power to regulate interstate commerce. It's aimed at a particular sector (healthcare) and uses a particular method (the mandate) to accomplish its goals, but lots of acts of Congress use slightly new and different ways of accomplishing legitimate goals. The methods of 1787 just don't map precisely onto 2012.

We'll see. If the conservative justices are simply bound and determined to make their mark and overturn Obamacare, they will. But if they do, they're going to have to torture the law pretty hard to get there.

More here from Adam Serwer on possible outcomes.

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