What's Next for the Opposition?

National Review Online, June 2012

The constitutional model for what to do with the individual mandate comes from the Democratic party — the Democratic party of Andrew Jackson, who showed that a Supreme Court decision is not the end of public discussion of the constitutionality of a government program that favors special interests over the public interest.

In the famous 1819 case of McCulloch v. Maryland, the Supreme Court upheld the constitutionality of the Second Bank of the United States. Although McCulloch settled the issue for the judicial branch, the bank never ceased to be politically controversial. In 1832, President Jackson vetoed the recharter of the bank. His veto message quoted McCulloch, explaining the principle that the president and Congress had their own duty to make decisions about constitutional necessity. After a titanic political struggle over the next several years, Jackson and the Democrats won, and the bank expired.

In the constitutional judgment of Jackson and his allies, the bank was a tool of special favors for some, thereby violating government’s duty to provide “equal protection” for all. So great was Jackson’s victory that the United States remained free of a national bank for the rest of the century. That is one reason that America enjoyed such strong economic growth.

Even when the Federal Reserve was established under Woodrow Wilson in 1913, the memory of the “Bank battle” was still so strong that regional reserve banks were established, rather than a single central bank.

The weakest part of Chief Justice Roberts’s opinion is his assertion that the individual mandate merely “makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.” To the contrary, earning income or buying a product is an activity that can constitutionally be subject to an “excise” tax. There is literally no constitutional or tax-law precedent for the notion that an individual can be subject to an excise tax merely for choosing not to buy a product.

Presidents and members of Congress take oaths to uphold the Constitution, and some of them take that oath seriously. Faithful to their oaths, a new Congress and a new president can repeal the individual mandate not only because it is bad policy, but also because they rightly consider it unconstitutional.

— David B. Kopel is Research Director of the Independence Institute and an adjunct professor of constitutional law at Denver University.

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