Somin on Why Health Care Mandate is Unconstitutional

Professor Ilya Somin argues in an op-ed that the federal government's claims that Congress has the power to impose the individual health care mandate under the Commerce Clause, the Necessary and Proper Clause, and the Tax Clause of the Constitution are without merit and would give Congress the power to enact virtually any mandate of its choosing.

"Such a ruling would be unprecedented and would make a hash of the Constitution's carefully defined limits on federal power," says Somin.

Twenty-eight states and several private groups have filed lawsuits challenging the constitutionality of the health care plan, and other suits have been filed by a variety of private groups.

"When the first of these suits began a year ago, many denounced them as frivolous political grandstanding. But it is increasingly clear that the plaintiffs have a real chance of winning," Somin maintains. The matter is expected to be heard eventually by the Supreme Court.

Why the Individual Health Care Mandate is Unconstitutional, Jurist, May 4, 2011. By Ilya Somin.

"Finally, it is important to emphasize the sheer range of interests that come into play here. The logic of the pro-health care mandate argument can justify virtually any mandate to purchase or do anything. This opens the door to the machinations of an extraordinarily large number of interest groups. It is likely that at least a few of them will figure out a way to take advantage of the opportunity.

"The legal battle over the mandate is far from over. The five district court rulings issued so far are just the first stage of the process. All of them will be reviewed by federal courts of appeals. Eventually, the issue is likely to be decided by the Supreme Court. There, the anti-mandate plaintiffs still face a difficult struggle. The Supreme Court rarely strikes down a law that is a centerpiece of the political agenda of the president and his party. Nonetheless, it is now clear that the lawsuits are far from frivolous. They deserve to prevail and have a real chance of doing so."

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