Tuesday, July 20, 2010

Elena Kagan and the Individual Mandate, Continued

Solicitor General Kagan responded to a series of questions posed by Sen. Sessions and all Judiciary Committee Republicans yesterday, writing a letter in which she states that she did not have a role in formulating the Administration’s response to the lawsuits challenging the health care law.  On a related note, the New York Times has an editorial this morning on the Kagan nomination that criticizes Republicans for raising the issue of the individual mandate, and the seemingly infinite power granted to Congress under the commerce clause should it be found constitutional, during her confirmation hearings.  The editorial alleged Republicans are making “a huge ideological fuss” about the issue, evidenced by the fact that Sen. Coburn raised the “seemingly silly hypothetical” about Congress’ constitutional ability to order individuals to eat three fruits and three vegetables a day. (Video of that exchange can be found here.)

However, the real point of the exchange was that such an “eat your vegetables” law, while silly, would NOT be a hypothetical if the Supreme Court asserts that not buying health insurance constitutes economic activity – thereby granting Congress the power to force individuals to perform all sorts of “seemingly silly” tasks so long as they have some form of economic impact.  Congress has never required individuals affirmatively to purchase a good or product, and requiring all individuals to purchase health insurance on the grounds that NOT doing so constitutes “economic activity” raises legitimate questions about the other ways in which Congress can intrude on individuals’ lives.  Even noted liberals like Jonathan Turley have acknowledged that challenges to the individual mandate “should not be dismissed as baseless political maneuvering,” due to the expansive authority such a mandate, if deemed constitutional, would grant to the federal government.

It’s also worth pointing out – as this space has done previously, and the Times’ own Robert Pear noted over the weekend – that the Administration has now decided to invoke the taxation power as one way to justify the individual mandate, contradicting the President’s own strenuous assertions last September “absolutely reject[ing]” that the individual mandate represents a new tax on the middle class.  The fact that even liberals have acknowledged the expansive powers lurking behind the individual mandate, and that the Obama Administration felt compelled to engage in a significant flip-flop over whether the mandate is a tax to defend its legitimacy, suggests that this issue should not be treated as glibly as the Times would believe – and that there are legitimate questions surrounding both the lawsuits and Republican questions of Ms. Kagan regarding her involvement in them.