How the obamacare case defined deviancy down

Michael Dorf, in his review of my book, The Tough Luck Constitution and the Assault on Health Care Reform, agrees with me that what I call "Tough Luck Libertarianism"-the idea that if you get sick and can't pay for it, the state has no right to help you-played a large role in the Court's decision in National Federation of Independent Business v. Sebelius,1 the Health Care Case.2 Dorf, however, thinks I have not given enough weight to two other factors: federalism and "nonpartisan framing."3 When these are taken into account, the constitutional challenge no longer seems to him as frivolous as he once thought (and I still think) it to be.It is important to consider, as sympathetically as you can, arguments with which you do not agree. But there are dangers. Dorf's generous spirit has led him to expand-really to explode-the bounds of the frivolous.I. Implementing FederalismThe Tough Luck Constitution tells the story of the Supreme Court litigation over the Affordable Care Act (ACA). Chapter One examines the history of health care reform in America and shows how the logic of reform led Congress to choose the mandate over other, functionally equivalent, but politically impossible, ways of delivering near-universal health care. Chapter Two, the focus of Dorf's critique, describes the appropriate constitutional limitations on congressional power. Chapter Three shows how the constitutional objections were invented, for the first time, as the bill neared passage. Chapter Four examines the Court's decision. Chapter Five considers the decision's aftermath.Dorf thinks that I am poorly positioned to criticize the Court's federalism reasoning:Koppelman rejects the entire framework within which the Supreme Court's conservative majority has implemented the Constitution's federalism limits; thus, like other liberal constitutional scholars, he was not and is not well positioned to say what questions that majority would regard as settled and what questions it would regard as open.4Actually, I share the Court's interest in limits on congressional power, though I conclude (and Dorf agrees) that the Court has made a mess of the job.I argue in the book that the most sensible understanding of constitutional limits on congressional power is the principle of subsidiarity, which holds that central authority should perform only those tasks which cannot be performed at a more local level.5 At Philadelphia in 1787, the Convention resolved that Congress could "legislate in all cases . . . to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation."6 This was then translated by the Committee of Detail into the present enumeration of powers in Article I, Section Eight,7 which was accepted as a functional equivalent by the Convention without much discussion.8 I argue that ambiguities in the enumeration should be resolved by reference to the general purpose of the Constitution. That purpose is revealed not only by these then-secret deliberations but also by the widely shared understanding that the Articles of Confederation were defective and had to be replaced precisely because they created a state of affairs where some problems could be solved neither by the states nor by the federal government.9 Specifically with respect to the commerce power, I follow Robert Stern, who observed in 1934 that "no hiatus between the powers of the state and federal governments to control commerce effectively was intended to exist"10 and that the Framers did not intend that the people of the United States "be entirely unable to help themselves through any existing social or governmental agency."11Dorf objects that the principle of subsidiarity is not in the Constitution as finally enacted. "Where specific language implements some general principle, the specific language controls."12 He is right in part: perhaps subsidiarity does not justify a federal bankruptcy law, but that is specifically authorized by the text. …