Monday, April 02, 2012

once more, with feeling

the weird thing about justice kennedy evoking the idea of "liberty" during the individual mandate oral argument (and how that idea has been picked up by kindergarten libertarians in the blogosphere is that commerce clause questions are usually not about liberty. they are about the mechanics of government.

in order for an act of congress does to be considered constitutional, it must get over two hurdles: (1) congress must have had the power to pass the law, and (2) it can't violate any of the substantive rights guaranteed by the constitution. a commerce clause issue is about question #1, not #2. #2 is generally where we end up talking about liberty.

there is no question that the government can regulate all kinds of commerce, whether international, interstate, or intrastate. the commerce clause is about allocating which entity in government is allowed to regulate various kinds of commerce. the clause assigns to the federal government the ability to regulate international and interstate commerce (including anything "necessary and proper" to regulate those kinds of commerce) and to the states the ability to regulate intrastate commerce. there's no constitutional guarantee of the liberty to be free from commerce regulation. the government can regulate it all, provided the regulations don't infringe upon the right to free speech, due process, equal protection, etc.

to the best of my knowledge the plaintiffs in the health care challenges haven't raised a substantive rights argument against the ACA. they're just claiming that the individual mandate is too local to be within the power of the federal government. which would mean that states have the power to do that kind of regulation. it doesn't mean that anyone has a right to be free from a mandate. that is what i was trying to say earlier.