Following oral arguments at the Supreme Court, a consensus has emerged that the individual mandate is in jeopardy.  Before this rush to judgment becomes a tsunami, let us consider the legal consequences.  After all, the justices are not rock stars, but public servants.

If politics win, the results will be more troubling than the unrealistic parade of horribles that dominate today. Though not as colorful a soundbite as being forced to buy broccoli, a decision against the mandate could foment a revolution.

The introduction of individual rights into commerce clause jurisprudence may seem appealing. But it will spark a flood of cases in which politics trumps legal reason.

The individual mandate is constitutional if the activity being regulated has a substantial effect on interstate commerce or if it is considered an integral part of a larger regulatory scheme which itself has a substantial effect. Laws against extortion, race discrimination and marijuana possession have thus been upheld. In the last 20 years, however, the Court has invalidated statutes regulating guns in school zones and gender-based violence. These activities were deemed non-commercial and too remote to affect commerce.

The lawyers opposing the individual mandate apply these cases using voodoo logic. They contend that the regulated activity is a decision not to buy insurance.  It is not commercial, because it is a refusal to enter the stream of commerce, and it is too remote to have a substantial effect.  While agreeing that Congress can legislate health care, the opponents maintain that the mandate is not necessary for a larger regulatory scheme. Rather it creates problems by forcing the healthy to subsidize the sick.

The government counters that the uninsured engage in commerce by obtaining health care. Their inability to pay has a substantial effect because premiums rise.  The problem is resolved through the individual mandate which creates universal coverage.  It is also integral to the successful implementation of a larger regulatory scheme as evidenced in Massachusetts.  In contrast, seven states that did not implement a mandate experienced skyrocketing premiums, falling coverage and fewer insurers.

The Supreme Court is the final arbiter of constitutionality. In oral arguments, Justice Ginsburg disposed of the subsidization problem by quipping, “…that’s how insurance works.”  The issue of whether the mandate passes the substantial effects test was superficially discussed.  Indeed, the Court normally defers to Congress in such clear cases.  To do otherwise would prioritize political conviction over legal precedent.

The necessary and proper clause provides Congress with broad authority to choose the means to regulate. In the last 20 years, the Court has rejected two provisions which passed the substantial effects test.  Here, the Tenth Amendment’s principle of state sovereignty was violated by commanding states to act.

The powers of Congress are limited to those enumerated in the Constitution.  In another logic twist, the opponents point to the two 10th Amendment cases to argue that the limiting principle is violated when people are forced to buy insurance. This is because upholding the individual mandate, which is non-commercial and too remote from commerce,  would allow Congress to do anything.  As Justice Scalia explains, “lack of exercise causes illness, and that causes health care costs to go up. So, the federal government says everybody has to join an exercise club.”

The government rejects these arguments.  The aim of commerce clause jurisprudence is to police the boundary between state and federal power in order to preserve individual rights and public accountability. When the federal government regulates people directly, however, there is no threat because it can be voted out.

The government supports the following limits to any ruling. A first limit is the substantial effects test itself.  Indeed, it is difficult to imagine how forcing people to join an exercise club could pass muster. Any ruling is also restricted by the uniqueness of health care.   It would only apply where nearly all are in the market, where the time of usage and costs are uncertain, and where cost-shifting occurs.  Fears of unlimited power are further assuaged because states have plenary power to compel, but have never forced people to buy broccoli.

Opponents complain that the individual mandate lacks political accountability.  Yet surreptitiously inserting undefined notions of individual rights into commerce power jurisprudence smacks of democratic deficit. In the absence of any precedent, it is hard to imagine how these rights would be defined and  limited. Throwing out the individual mandate would thus foment a revolution challenging any regulation that limits freedom.  As lifetime guardians of our Constitution, the justices should know better.