Posted by: captainfalcon | February 7, 2011

A bad argument for the constitutionality of Obamacare

Akhil Amar – who is usually my man – has lapsed into hackery. This is seriously bad. The Dred Scott stuff (already pilloried) is as inapposite – and cringe-worthy – as Vinson’s bizarrerie about a “mandate on tea.” And the point about how George Washington ordered the arming of the militia therefore Congress has the power to regulate inactivity under the Commerce Clause maybe is the beginnings of an okay argument (something along the lines of there is no inactivity/activity line built into Art. I § 8, so the activity/inactivity distinction is ad hoc – that is an Amar-esque argument) but it ignores the clause empowering Congress “[t]o provide for organizing, arming, and disciplining, the militia,” under which power the 1792 mandate seems squarely to fall.

Thus, for all Amar’s said, an equally plausible argument is that there is a presumption in favor of the activity/inactivity distinction that is only defeated by affirmative grants of power – this is why, the argument would continue, all mandates so far have been pursuant to clauses specifically authorizing their passage.
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