The difference between any of those right-wing culture war issues (besides abortion, against which the right wing is winning the PR battle) is that there is no objectively legitimate basis for moral outrage. Almost all of the Republican arguments are based on economic or scientific theories that have no (or very little) empirical basis. So even if you do successfully frame supply-side economics as a moral issue, as Republicans today are trying to do, reality eventually proves you wrong and you fail even more dramatically in the long term.

Advocates for gay marriage, on the other hand, have the momentum of reality on their side. All of the dire social warnings that Republicans have offered through the years have not been borne out by experience. The fundamental relationship between religion and government in our country makes a prohibition on gay marriage based on the dictates of religion quite uncomfortable. We are a country that doesn’t really like to talk about sex anyway, so culturally we will tend to let people do whatever they want so long as we don’t have to know about it and it doesn’t touch us in some way. That’s why Republicans have always tried to claim that the gay lifestyle creates a raft of social problems, which, as we have seen over the past half century, it doesn’t. As Rick Perry would say, “Oops.”

On the other hand, gay marriage advocates can point to manifold forms of real and actual discrimination. DADT activists could point to the actual beatings and murders of gay troops who had been outed by their peers. That really happened, and those people have real families and really served their country. They are sympathetic in a way that trumped up warnings about social evils that never pan out simply are not.

There’s a broader lesson here: choose your moral battles wisely. The short-term and aggressive push back against gay marriage in the 2000s turned out to be a Pyrrhic victory. It has paved the way for even more aggressive reforms than anyone would have expected a decade ago. Compromise is probably the best strategy for people who are on the wrong side of history. Subtlety allows an evil to survive, while outspokenness merely draws attention to it.

Certainly civil rights is a rather easier moral call to make. But as I mentioned in my last reply, what happens when commerce clause jurisprudence and civil rights jurisprudence are the same thing? ie., when an expansive CC interpretation is used to uphold civil rights legislation, as in the Civil Rights Act? What’s an originalist non-racist to do? This is sort of off-topic though…

“Your argument posits that the federal government can regulate any market in which you chose not to participate.”

I sure hope not. My argument posits that the government can regulate any market that substantially affects interstate commerce. We all recognize health care/insurance as one such market. The unique and inherent cost shift/adverse selection problem is the reason why you “not participating” constitutes intimate involvement in this market; a market, again, in which Congress already has broad regulatory power under the Commerce Clause. The mandate is a necessary part of this larger regulatory scheme through which Congress is trying to ameliorate a variety of public policy problems in a market comprising 1/7th of the U.S. economy. Congress should have broad latitude to act in this area.

I guess that’s my succinct view. I do not think the above constitutes a new unlimited theory of Congressional commerce power. I assert that there is a unique tangle of problems related to the health insurance market that makes non-participation different from all the other stuff you’re not participating in. I can’t convince you of that assertion; but if you can find another area of commerce with analogous complications created by your non-participation, one in which Congress already has a broad regulatory authority under the Commerce Clause, I’d really have to think about it. Point is that I think the justices have ample room here to construe the result as narrowly as they want.

“Where is the precedent for using adverse selection and externalities as a way to determine what is and isn’t interstate commerce?”

Clean Air Act?

Fair point, and yes, more recent precedent is more persuasive. However, I think what differentiates commerce clause jurisprudence from civil rights legislation is that we can probably come close to unanimity in deciding that blacks shouldn’t have to drink from separate water fountains. Whether interstate commerce involves me growing wheat in my back yard for my own consumption is a little more amorphous.

“you are not just sitting on your couch doing nothing. You are choosing to participate or not participate in a unique type of insurance market, which is the primary means of payment for health care services, of which you and nearly everyone else is already a consumer or will very soon be one.’

Under this theory, though, what isn’t a choice? I’m not a strict constructionist, but it seems ludicrous to say that me “choosing to…not participate” is interstate commerce. Really the only purpose of this clause was to regulate tariffs between the states. That’s it. Check out Federalist 45 – it was more or less an afterthought, not to be worried about.

But even if you don’t like the originalist interpretation, I think we can all agree that the federal government’s powers are limited by the constitution. Your argument posits that the federal government can regulate any market in which you chose not to participate. How is that not extreme? And where is the precedent for using adverse selection and externalities as a way to determine what is and isn’t interstate commerce? Isn’t that unprecedented?

–I don’t think Matt Steinglass is arguing for mob rule or the doing away with judicial review. I think the point, that the democratic process is a crucial check on Congressional insanity, is a good one. It’s not the final check, but a crucial check. As I said in the post, we all agree that Congress could do many horrible things perfectly legally, yet it refrains from doing so. Beyond concern for their jobs, necessary and proper is one legal standard that keeps Congress from ordering you to buy other stuff. It’s a malleable standard of course, but as Steinglass notes in the end of his post, it’s incredibly hard to “think of any other area of the economy or society [save health care] where having the federal government order every citizen to buy a good from a private provider seems like a reasonable solution to a problem, or has seemed so to anyone else, Democrats, Republicans.” (italics mine). That’s why the slippery slope fear is dumb. Justice Kennedy should worry about the tyranny of the broccoli mandate only after the Broccoli Mandate Act is passed by Congress and lands on his docket.

“The point here is whether me sitting on my couch doing nothing is interstate commerce. Any simpleton can argue that interstate commerce is affected if you frame the issue broadly enough.”

This is the crux of the matter. What was argued in the case, and what Justice Roberts even seemed to have some sympathy for, is that you are not just sitting on your couch doing nothing. You are choosing to participate or not participate in a unique type of insurance market, which is the primary means of payment for health care services, of which you and nearly everyone else is already a consumer or will very soon be one.

–In this light, I think the adverse selection and cost externality problems are indeed relevant to the legal argument, and speak to why it might be prudent for Congress to take action in the health care realm in a way that it cannot, or ought not, take action in the car or broccoli or television realm. Congressional regulation must derive from an enumerated power, but it must also be necessary and proper. You say rightly that Congress already has its regulatory tentacles so deep in every aspect of the health care market. In my view that miltates in favor of the ACA. Congress is attempting to remedy a variety of problems in a market over which we all agree it has considerable regulatory jurisdiction. In such a market, the Court’s presumption should be that Congress has the ability to implement reasonable-seeming solutions which are plainly adapted toward a legitimate public end. Two appellate courts saw it that way, we’ll find out what Kennedy and/or Roberts see.

This is factually inaccurate. Up until the 1940s, there was a pretty defined limit – it was Wickard that was novel and near-unprecedented. People choose to ignore the precedents from the late 1700s through the first half of the 20th century to support their argument that Congress’s power is nearly unlimited. Why is it okay to ignore all that history, and chose only to view the last 70 years’ worth? Besides, your take also ignores Lopez and Morrison.

“But—as if this were not obvious—where is the issue of free-loading in the car market?”

I hate slippery-slope arguments as much as anyone, but you’re cherry-picking more than Scalia. Why does free-loading in the market have anything to do with whether this is interstate commerce? You’re making a policy argument, not a legal one.

“in Helvering v. Davis, the 1937 case that upheld the constitutionality of the original Social Security program.”

Poor analogy. No one is arguing that Congress couldn’t enact a universal health care tax and put into place a single-payer system, just like Medicare. But enacting a tax on someone is different than saying “if you don’t buy this thing, we’re going to penalize you.” So analogizing to Medicare or Social Security just doesn’t make any sense.

“For one thing, I am unaware of a nationwide broccoli insurance market complicated by the adverse selection problem, ever-rising costs of broccoli premiums, and tens of millions of Americans whose inability to afford broccoli forces a massive broccoli cost-shift onto the rest of broccoli-eating society.”

Again, everything you’re saying here has nothing to do with a legal argument. The right question to ask is does broccoli affect interstate commerce? The answer is yes, in theory. The argument about whether adverse selection exists, or the price of broccoli increases, or cost-shifting is completely irrelevant. The court has said that you can’t pile on inference after inference after inference to make your case.

“As Matt Steinglass notes at the Economist, Congress’s ultimate “limiting principle” is democracy! Politicans like being reelected, and to be reelected you have to do marginally popular things, and avoid doing widely unpopular, arbitrary, or odious things.”

This is a horrible argument. If this were true, let’s just do away with judicial review in its entirety. Is this guy unaware of the tyranny of the masses? How would any minority’s civil rights be protected in this fantasy world? I guess we should have left the Jim Crowe laws up to the democracy in the south? Come on.

“the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.”

This simplistic take borders on retarded. The government does already regulate health care commerce. It has the FDA, it institutes standards in medical practice, and on and on. Again, no one is claiming the feds can’t regulate the health care market. Do away with preexisting conditions, make it illegal to raise premiums, whatever. The point here is whether me sitting on my couch doing nothing is interstate commerce. Any simpleton can argue that interstate commerce is affected if you frame the issue broadly enough. Is me watching porn in my home interstate commerce? Well, TVs have parts that were probably transported interstate, so yes! That’s not how it works.

I’d refute the rest but I don’t have the time.

As Charles Fried, Reagan’s solicitor general, said last week, “the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.”

Indeed, Don Verrilli might have benefited from his predecessor’s flair for terseness.

I think that I tend to share your preexisting bias concerning the constitutionality of ObamaCare, but I that you miss an important point.

There is another ‘limiting principle’ to the actions of the federal government, besides the vagaries of electoral politics. Federal power is limited by the Constitution, and only very few, “enumerated” powers fall to the federal government. So if the government claims that it has a power under the constitution, the conservative justices are right, I think, to ask, ‘where does that power end?” Because the starting assumption is that federal power is limited.

I do think that there is a convincing response to this question, in the case of Obamacare. To wit: the government has the power to do what is “necessary and proper” to “regulate commerce … among the several states.” If the government can then show that the individual mandate is necessary and proper to the regulation of health care, then its case is made. Unfortunately, this may be a difficult case to make, and I fear that the SG did not make it very well.