There’s a lot of buzz lately about an article David R. Dow, who is the Cullen Professor at the University of Houston Law Center and the Rorschach Visiting Professor of History at Rice, about the Supreme Court’s ObamaCare hearings. In it, he insists that, if the Supreme Court justices overturn ObamaCare because it’s unconstitutional, they must be impeached. Interestingly, in his entire essay, Dow pretty much avoids the Constitution. As best as I can tell, his entire defense for ObamaCare is that it’s good social justice policy. His only bow to the Constitution is to say that the Constitution protects the community, as well as the individual.
Better constitutional minds than mine have taken apart Dow’s silly argument, so I won’t address it here. I just want to raise a single point he makes, both because it’s wrong (duh!) and because it touches upon something that I haven’t seen mentioned elsewhere. Dow, of course, argues that car insurance justifies ObamaCare:
First, Congress’s authority in passing the law rests on an elementary syllogism: You don’t have to drive, but if you do, the government can make you buy insurance. The logical structure at work here is that if you are going to do something (drive, for example), the government can make you purchase a commercial product (insurance, for example), so long as it has a good reason for doing so (making sure you can pay for any damage you do).
Prof. Dow, I hate to tell you this, but there are no federal car insurance mandates, so far as I know. Those are state laws. Anyone with even the most rudimentary constitutional knowledge knows that, while the Constitution was written to grant the federal government only the most minimal power over individuals, with the Bill of Rights working hard to maximize individual freedom, state governments have a lot more leeway to exercise affirmative control over individuals. (Just in case you were wondering, Prof. Dow, that’s the 10th Amendment right there.)
More than that, and please correct me if I’m wrong, the Supreme Court has never examined whether the federal government has the authority to force all American citizens, whether or not they drive, to have car insurance. Another legal principle that Law Professor Dow seems to have forgotten is a fundamental rule, not just of life, but of life: The fact that something hasn’t yet been challenged doesn’t mean the absence of challenge proves that it’s correct. If the Supreme Court had indeed considered federal laws forcing all Americans, whether or not they drive, to have car insurance, Dow’s point would be well taken. To the extent, though, that no one yet seems to have challenged this non-existent law, so that the Supreme Court hasn’t opined on its constitutionality, for Dow to declare that mandatory federal car insurance is the necessary precedent to establish ObamaCare’s constitutionality is a bit presumptuous and a lot ignorant.
[Pardon typos in this one. It falls in “the dictated but not read” category. I have to run and will be gone for several hours. Any comments, corrections, additions, etc., are welcome.]