Barack Obama is not the only law teacher who doesn’t know law

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.]

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  • JKB

    But even if the car insurance analogy applied to the federal level.  It would not inform Obamacare, which seeks to impose higher costs, above actuarial risk, on some to pay for others.  It also, requires something more like comprehensive and collision plus routine maintenance as well as free coverage for playing bumper cars.  

    But, should Obamacare be struck down, it would be interesting to see if people could be required to carry actuarially appropriate major medical policies to attack the “emergency room” care free rider problem.  But no bells or whistles, birth control or viagra, just high deductible coverage for emergent serious illness or injury.  Then you could argue it was close to being like car insurance.

  • JKB

    Oh, I forgot, over at Coyote Blog, he has a post that properly frames the cost issues of Obamacare from the male/female perspective.  It would be nice to see it from the age perspective.  

    Coyote Blog » Blog Archive » Make Men Pay 

  • Old Buckeye

    He says: “You don’t have to drive, but if you do, the government can make you buy insurance.” Following this line of reasoning, I’m reading Obamacare as “You don’t have to live, but if you do, the government can make you buy insurance.” 

  • jj

    Wow – what an idiot. How the hell did he end up in Texas, instead of Cambridge, or New Haven?

  • Oldflyer

    Good post Book. 
    A little quibble.  Most states do not require that you buy auto insurance to drive; but they do require that you demonstrate financial responsibility.  For most, the preferred method of doing that is to purchase insurance; but it is not mandatory.
    I forget just now which Justice raised the point of whether burial insurance should be mandatory, since we will all die.  I believe that one simple question demonstrated the vacuity of the currently favored argument for the mandate.
    It is appalling how many allegedly intelligent people are so anxious to abandon our Constitution because it is inconvenient to their agenda.  I am sure that they assume that in a government in which elites are free to act as they see fit, these people assume that they–or equally worthy folks–will always be in charge.  In doing so they demonstrate a lamentable ignorance of history.  Or, alternatively, they know history, but are actually too stupid to connect the dots.

  • Mike Devx

    Oldflyer says: It is appalling how many allegedly intelligent people are so anxious to abandon our Constitution because it is inconvenient to their agenda. 
    O ye who have ears to hear, listen!

    It will be interesting to read the majority opinion of the Supreme Court should they uphold the Individual Mandate (and all of ObamaCare).  The government was unable to identify any limiting principle on the Individual Mandate; this means that the government *can* in fact compel us to buy anything – or do anything – that it deems important.  All the government has to do is declare that it is “vitally important”.

    Well, Obama will declare anything he wants to do to be “vitally important”, and he’ll then appoint a czar to force us, via some other new and shiny Individual Mandate, to do whatever it is he wishes us to do.  We will have become government slaves, slaves to our government.  Truly.

    But. with there being no limiting principle on the Individual Mandate, I suspect even the liberal judges, should they win the argument, won’t be able to stomach it.  They would insert (invent) their own limiting principle. It will be as bizarre a dance as that pseudo-medical dance that the justices used in Roe v Wade.  To justify an unjustifiable decision, they will invent SOMETHING that will allow them to sleep at night.  That majority opinion would be entertaining reading, indeed!

    But I hope to not see the day.  Prudence and humility may prevail, even if by a 5-4 decision, and they’ll strike down the Individual Mandate, and send the rotting, stinking morass of a bill back to Congress to contemplate – and hold their noses – as is proper.