Yesterday Mr. D pointed out that if the Supreme Court strikes down the individual mandate (thus effectively gutting the ACA, or "Obamacare", if you must) that a host of other federal regulations long considered to be cases of congressional and/or executive overreach could become fair game, to which I responded with some skepticism.

However, Will Wilkinson delves into this from an angle slightly askew (as he is wont to do) and ends up reaching a similar conclusion. After attempting to discern the substantive difference between "mandating that individuals buy stuff and taxing individuals to buy them stuff" (short version: there isn't one), he writes:

One principled libertarian line on this question is that government has the power to tax only for the purpose of spending on the provision of those public goods, such as the common defence, which voluntary exchange on the free market cannot be relied on to provide...A ruling to the effect that government may not force citizens to do business with private entities could be useful to a libertarian legal activist precisely because there really is no sound distinction between mediated and unmediated transactions. Having used a spurious distinction to elicit a decision striking down government's power to make people buy things, the savvy libertarian legal eagle can turn around and attack the very same distinction in order to set limits on the government's current power to spend tax dollars on anything it likes.

Maybe. But this is (nearly) the same Court that ruled growing a plant for your own consumption can be regulated under the authority of the interstate commerce clause. These are humans, not machines, which means among other things that they are prone (just like the rest of us) to all manner of mental gymnastics to justify whatever course of action they choose to take. The justices may very well rule against the mandate (and I'm not completely sure that they shouldn't), but they certainly won't be doing it for the benefit of libertarian activists, savvy or otherwise. Nor do I think they will have any trouble ignoring the ironclad logic of really smart guys like Mr. Wilkinson, if it suits them to do so.

It's a lovely fantasy to envision an unraveling of federal power flowing forth from a single decision with all the inevitability of water reaching the lowest point. But I'm pretty sure it isn't more than that. Even republics are governed by men.

1 comment:

Mr. D said...

First, thanks for the nod, Brian.

I understand your skepticism. The interstate commerce clause, as it has been interpreted for the past, oh, 70 years or so, has been magic formula for all manner of things and you are right to counsel caution.

There are a lot of cases that were horribly decided in recent years -- Kelo is my personal pet peeve. Other people hate Citizens United. The best way to look at things is to assume that the Supreme Court is going to be unreliable.