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Liberal law professors were against the mandate before they were for it

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Politics,Beltway Confidential,Timothy P. Carney

When federal judge Roger Vinson ruled the individual mandate unconstitutional in early 2011, law professor Karl Manheim took to the airwaves and declared it “radical decision” that represents “a resurrection of the old states’ rights, Southern right argument.”

Got that? You’re probably for Jim Crow, or even slavery if you’re against the individual mandate. It’s worth noting that Manheim is an Obama donor. That’s worth noting not because it explains why he would so tendentiously defend the mandate, but because it helps explain why, back when Obama opposed the individual mandate during the 2008 primary season, Manheim argued that a mandate might be unconstitutional.

Manheim wrote in March 2004:

Are health insurance mandates constitutional? They are certainly unprecedented. The federal government does not ordinarily require Americans to purchase particular goods or services from private parties.

And as far as Obama’s argument that a health insurance mandate is just like an auto insurance mandate, Manheim dispatched that:

But in such cases, the “mandate” is discretionary — you don’t have to drive a car or build a house. Nor do you have a constitutional right to do so.

But Americans do have a constitutional right to live in the United States. Accordingly, neither federal nor state governments can require you to purchase health insurance as a “condition” for residency. The Supreme Court has drawn a distinction between requirements that are flat-out imposed by government and those imposed as a condition for discretionary benefits.

How about the “It’s-just-a-tax” argument? “Government cannot simply delegate its taxing powers to private business,” Manheim wrote. It’s a good article.

And keep this in mind as liberals argue today that it’s radical to find the mandate unconstitutional.

 

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