Progressive law professor David Cole is at it again. A few days ago, I criticized his essay on the legal challenge to Obamacare. This time, he quotes two other law professors who agree with him that the individual mandate of Obamacare does not violate the Commerce Clause of the United States Constitution. What is the point of this exercise? Two sitting federal judges have ruled that the mandate violates the Constitution. Who cares if two, 20, or 200 law professors believe otherwise? It's mind-boggling. One of the two law professors quoted, Charles Fried, is described as "conservative," which is risible. Fried supports Roe v. Wade (1973) and voted for Barack Obama. He may be a Republican (in name only?), but he is no conservative. Cole is trying to persuade conservatives by falsely implying that one of their own agrees with him. This is dishonest.
As for the substance of Cole's blog post, all I can say is that it leaves much to be desired. Cole reads the words "necessary and proper" as "any appropriate means." Does the word "necessary" mean anything to him? Coercing individuals into purchasing something they don't want and don't need is not necessary for Congress to "regulat[e] health insurance." It may be desirable, but it is not necessary. If Congress wants to expand health care, it should tax citizens and use the revenues to provide care to those who cannot afford it. You can see why Congress and the president don't want to do this. It is political suicide. Their aim is to get the benefit of a tax without calling it a tax. They are hoping that unelected judges will do their dirty work for them. Cole and his fellow progressives are outraged that this strategy is failing.
Cole supports his argument for the constitutionality of the individual mandate by citing the example of Massachusetts. But that's irrelevant. The question is not whether an individual mandate enacted by the Massachusetts legislature violates the Massachusetts Constitution; evidently, it does not. The question is whether an individual mandate enacted by Congress violates the United States Constitution, which, as all but progressives seem to recognize, describes a limited government. The federal government is explicitly empowered to regulate interstate commerce. Choosing not to insure oneself against various health risks, no matter how you slice it, is not commerce. It is the absence or antithesis of commerce.
You have to give Cole credit. He is doing everything he can to evade the Constitution's strictures while pretending to care about them. That, sadly, is the progressive way.
Addendum: In his final paragraph, Cole accuses his opponents of advocating "judicial activism." What ice does this cut? Cole himself has no principled opposition to judicial activism (he embraces it), and his understanding of it is unrecognizable to conservatives. This is the rhetorical equivalent of calling one's opponents "communists," "fascists," or "atheists." It has no substance; it is meant only to abuse.
Keith Burgess-Jackson, J.D., Ph.D. 