Adam Serwer spells it out:
I'm not sure there is a gotcha question. The only thing the ACA is mandating is that people buy health insurance. That's power that is being questioned. No one is questioning whether Congress can force insurers to cover people pre-existing conditions. And despite what some conservatives want to argue, Congress is not trying to force anyone to eat broccoli.
Congress is merely trying to regulate the health insurance market. Its not trying to force people to be healthy. Its acknowledging that regardless of ones health, at some point they will need to enter the health care market. And given the high costs of health care and the fact that the law requires the uninsured to be given medical treatment, not insuring yourself affects the market. So the ACA is saying that in order to try and solve a problem with the health insurance market, which is part of interstate commerce, it can force people to buy health insurance. That's it. What more is it mandating?
If that's all its mandating why is there a question of doctrinal limiting principles? Perhaps since I'm not a lawyer I'm missing something or not understanding doctrinal limiting principles. But if all the argument for the ACA is that Congress can mandate that people buy health insurance why is it necessary that the ACA supporters spell out other things Congress might or might not have the power to mandate?
What the law's critics will seize on, however, is Silberman's observation that although the government argues that "the Government does stress that the health care market is factually unique," it "concedes the novelty of the mandate and the lack of any doctrinal limiting principles."
While "novelty" isn't inherently an issue when it comes to the constitutionality of a given law, the "lack of any doctrinal limiting principles" is the most powerful argument critics of the ACA have, the idea that if the government can force you to buy health care, it can force you to do anything. Silberman describes this argument as "troubling, but not fatal," because of prior legal precedent supporting the ACA. The law's defenders unquestionably have legal precedent on their side. But its opponents have an incredibly effective political argument based on constitutional first principles.
More importantly, although the Supreme Court has only rarely favored those seeking to limit the government's power under the Commerce Clause, it has done so recently when government lawyers were unable to articulate any "doctrinal limiting principles" on the government's authority. UCLA Law Professor Adam Winkler refers to this as the "gotcha question," essentially arguing that the government's inability to "articulate meaningful limits on Congress' power" may prove to be the law's undoing.
I'm not sure there is a gotcha question. The only thing the ACA is mandating is that people buy health insurance. That's power that is being questioned. No one is questioning whether Congress can force insurers to cover people pre-existing conditions. And despite what some conservatives want to argue, Congress is not trying to force anyone to eat broccoli.
Congress is merely trying to regulate the health insurance market. Its not trying to force people to be healthy. Its acknowledging that regardless of ones health, at some point they will need to enter the health care market. And given the high costs of health care and the fact that the law requires the uninsured to be given medical treatment, not insuring yourself affects the market. So the ACA is saying that in order to try and solve a problem with the health insurance market, which is part of interstate commerce, it can force people to buy health insurance. That's it. What more is it mandating?
If that's all its mandating why is there a question of doctrinal limiting principles? Perhaps since I'm not a lawyer I'm missing something or not understanding doctrinal limiting principles. But if all the argument for the ACA is that Congress can mandate that people buy health insurance why is it necessary that the ACA supporters spell out other things Congress might or might not have the power to mandate?
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