Thursday, March 29, 2012

`Obamacare' - Congress's power is plain - Gillian Metzger - Balkinization

Columbia Law School's Vice Dean Gillian Metzger has a lucid analysis of the individual mandate's constitutionality. - GWC
by Gillian Metzger
"Equally striking, and too easy to lose sight of, is the key point on which all of the parties agree and the Justices appeared to accept: Congress can require anyone who is seeking healthcare services, and is therefore active in the healthcare market, to obtain insurance as the mechanism to finance those healthcare purchases---or pay an annual tax penalty. As Justice Kagan particularly noted, the issue here is simply one of timing. Those who oppose the mandate’s constitutionality say that Congress can only require purchase when an individual actually seeks healthcare, whereas those who support it contend that Congress can require purchase now because requiring purchase when someone shows up sick is infeasible. Critically, however, no one denies that Congress can require anyone actively seeking healthcare to buy insurance.
If so, the facial challenge to the constitutionality of the mandate being brought here has to fail."

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