OPINION: How Will the Court Rule in Mandate Case?

Predicting how the Supreme Court will rule in a given case is often a sketchy business. The court doesn't break down neatly along liberal/conservative, or big-government/small-government, lines. For every Heller or Citizens United infuriating the left, there's a Kelo or Raich to send steam billowing out of conservatives' ears.

So there's no telling how the Supremes might come down on the question of whether Obamacare's individual mandate is constitutional. Now that a federal judge has refused to dismiss Attorney General Ken Cuccinelli's suit against it, proponents of the Patient Protection and Affordable Care Act will have to argue the case on the merits.

That might not be as easy as some have assumed. This becomes clear from an amicus brief submitted by Ilya Somin -- a law professor at George Mason -- along with the Washington Legal Foundation and assorted other law profs from around the country.

Somin notes that, as Madison said, the Constitution does not grant Congress "an indefinite supremacy over all persons and things." Rather, it lists a finite set of federal powers -- and forcing people to buy consumer goods is not one of them.

True, the federal government does many other things the Constitution does not explicitly mention, and the power to do them is taken to be implied. So proponents of the individual mandate hang their hat on a couple of different hooks.

One is the Commerce Clause, granting a congressional power to regulate interstate commerce. The Supreme Court has broken down the Commerce Clause into three parts: regulating the channels of interstate commerce, the instrumentalities of commerce, and the "activities" that "substantially affect" interstate commerce. But, Somin writes, "an individual's mere status as uninsured is neither an instrumentality of interstate commerce, such as a road or airport, nor . . . is being uninsured a person or thing that travels in interstate commerce." And it is absurd to claim that inactivity constitutes activity.

To see why, Somin goes back to the decision in Gonzales v. Raich, in which the court ruled that growing marijuana for personal medical use -- an activity that is neither commerce nor interstate -- could be forbidden under the Interstate Commerce Clause. The Supreme Court ruled that Congress had broad authority under the clause to regulate even "noneconomic activity."

But unlike growing marijuana, not purchasing health insurance is not even an activity, and it is fatuous to pretend otherwise. The Commerce Clause gives Congress the power to regulate transactions between Jim and Bob. It doesn't give Congress the power to force Fred, who had been resting under a tree, to join Jim and Bob's exchange.

If Congress has the power to do that, Somin writes, then "the federal government would have the power to force citizens to engage in any activity that might conceivably affect commerce is some way." Big-government liberals might be perfectly fine with that. But, Somin says, "this is precisely the kind of unconstrained power that the court has expressly rejected."

At this point, Obamacare advocates usually interrupt with the emergency-room argument. It goes like this: "Well, people who don't have insurance end up needing medical care, and hospitals are required by law to treat them, and that imposes costs on everybody else. What are you going to do -- let hospitals throw patients into the street?"

This is a fine rhetorical device and an interesting ethical question, despite some factual weaknesses (not everybody requires medical care they can't pay for out of pocket; millions of healthy young adults don't need insurance). But it is not a constitutional argument. A hospital's legal obligations don't confer powers on Congress. Banks have lending obligations. That doesn't mean Congress can force you to open a checking account.

On Thursday, a federal judge in Michigan tested another argument: The failure to buy insurance qualifies activity because "by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later." The same reasoning, however, would deny conscientious objectors the right to avoid military service, because by choosing to forgo participation in a war, they are forcing someone else to go in their place.

The amicus brief makes quick work of the notion that the penalty for not buying insurance is a tax. It's not an income tax, it's not an excise tax, so it must be a direct tax -- which must be apportioned among the states -- or, as seems patently obvious, it's a penalty. But Congress can't impose a penalty to enforce regulation of something it has no authority to regulate in the first place.

Finally, the mandate's proponents say it's authorized by the Necessary and Proper Clause, because it's necessary to impose the requirement that insurance companies accept all comers regardless of pre-existing conditions. (Why? Because without the mandate, people wouldn't buy insurance until they got sick.) This might be the strongest argument for the mandate. But it still faces a couple of problems.

First, the individual mandate tries to achieve something by taking an extremely broad step when a more narrowly tailored one would suffice. As Paul Starr wrote in the liberal American Prospect last year, Congress could address the adverse-selection problem by giving individuals "a right to opt out of the mandate if they signed a form agreeing that they could not opt in for the following five years . . . .For five years they would become ineligible for federal subsidies for health insurance and, if they did buy coverage, no insurer would have to cover a pre-existing condition of theirs." Strictly speaking, the mandate is not necessary.

Second, if the court concludes that the mandate is justified because it is, after all, "rationally related" to insurance regulation, then the justices would open the door (as they did in Kelo) to governmental sophistry: As long as legislators claim a new power being sought has some tenuous connection to an existing power, then the courts can never say no. This would allow lawmakers to assume an indefinite supremacy over persons and things, by stacking new powers one atop the other.

Liberals are in love with granting Washington indefinite supremacy right now, with a Democratic Congress and president at the helm. They might not like it so much should a Republican Congress start working hand-in-glove with a President Sarah Palin.

My thoughts do not aim for your assent -- just place them alongside your own reflections for a while.