Note: This article is also posted at

Linda Greenhouse seems to think so. Responding to the argument that requiring individuals to purchase health insurance exceeds Congress’ authority under the Commerce , the former New York Times Supreme Court correspondent quips, “there’s no there there.”

[H]alf the public apparently believes that the Affordable Care Acts individual mandate is unconstitutional. Free of convention, and fresh from reading the main briefs in the case to be argued before the Supreme Court next week, Im here to tell you: that belief is simply wrong. The constitutional challenge to the laws requirement for people to buy health insurance – specifically the argument that the mandate exceeds Congress power under the Commerce Clause – is rhetorically powerful but analytically so weak that it dissolves on close inspection.

James Taranto and National Review’s Ed Whelan have already responded effectively to Greenhouse’s assertion. All I would add is that when actual judges have looked at the claim that the individual mandate is unconstitutional, they have hardly treated the argument as analytically weak. The District Court in Florida v. HHS concluded that the individual mandate was unconstitutional. So did the Court of Appeals. Overall, roughly half the judges who have reached this issue have concluded that Congress lacks the power to require individuals to purchase health insurance. And while the Supreme Court itself has yet to rule on the case, its actions thus far indicate that it does not consider the individual mandate to be obviously constitutional. If, as Greenhouse suggests, the argument against the mandate lacks substance, the Supreme Court could have summarily reversed the lower courts (as it does for the Ninth Circuit frequently).

Instead, the Supreme Court has set six hours of oral arguments for the case, including two on the constitutionality of the mandate itself, and another 90 minutes on an issue that only comes into play if the mandate is struck down-namely what to do with the rest of the law if the mandate is invalid. That’s a total of three-and-a-half hours of argument on the constitutionality of the mandate and its related provisions. Maybe Greenhouse has a degree of constitutional insight that escapes the current Justices of the Court, but if they did not see a serious constitutional problem with the mandate, they would hardly have schedule more than three times as much oral argument on it that most cases get in total. Pace Greenhouse, just because you don’t take an argument seriously does not mean it is not a serious argument.

-Josiah Neeley