The Myth of an Expert Consensus on the Constitutionality of the Health Care Mandate Revisited
Ilya Somin • April 1, 2010 11:59 pm
Back in December, I wrote a post debunking “The Myth of an Expert Consensus on the Constitutionality of an Individual Health Insurance Mandate.” Despite claims by some Democratic politicians and activists, there are numerous prominent constitutional law scholars who believe that the mandate is unconstitutional. I noted several of them in my post, including Richard Epstein and co-bloggers Jonathan Adler and Randy Barnett. While not as prominent as these scholars, I too teach constitutional law, federalism and the Commerce Clause are among my areas of expertise, and I have repeatedly argued that the mandate is unconstitutional (e.g. here and here).
Unfortunately, as co-blogger David Kopel points out, it seems more such debunking is needed, as some are still trying to peddle the myth of an expert consensus on this issue. David helpfully lists a large number of prominent legal scholars who believe the mandate to be unconstitutional.
Let me reiterate what is already known to most experts, but may not be clear to some in the media and the general public: There is not and never has been an expert consensus on this issue. Rather, this is one of a number of disputed questions in constitutional law that tends to split experts along ideological lines. Nearly all left of center experts believe the mandate is constitutional, while the overwhelming majority of conservative and libertarian scholars believe the opposite. Thus, neither side can “win” the debate simply by citing supposedly monolithic expert authority. There is no shortcut around the necessity of carefully considering the arguments on both sides. If we are going to have an intellectually serious discussion of this issue, that is what we will have to do. Citing the consensus view of academics or other experts isn’t going to cut it, for the simple reason that no such consensus exists.
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Ilya Somin says:
Do you think one’s answer to whether courts will strike down certain provisions (like the individual mandate) as unconstitutional depends on one’s ideological leaning, or just the answer to whether certain provisions are unconstitutional according to one’s particular favored interpretation of the Constitution?
If you read my post,and David Kopel’s, you might have noticed that both are devoted to question of whether there is an expert consensus about whether the mandate is unconstitutional, not to the separate issue of whether the courts are likely to uphold it or not. The courts make many mistakes. Personally, I think that a decision upholding the mandate is more likely than the opposite, but far from a sure thing. But, once again, that is a separate issue from the question of the constitutionality of the mandate.
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not my leg says:
...Assuming this is true, and I certainly don’t dispute it, what does it say about the state of legal theory. Part of me says it is a sad commentary on the state of legal theory. Rather than develop any principled legal theory, all we have done is dress political ideology up in legal clothing...
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