Assume, for the moment, that the Supreme Court rules that the mandate does not exceed Congress’ powers under the commerce and necessary and proper clauses. (This assumption was probably a safe one for most progressives until Tuesday morning.) The ruling sparks howls of outrage and Republicans win comfortable majorities in Congress this November and Mitt Romney takes the White House.

Congress subsequently determines that Americans can no longer feel sufficiently secure in their homes. Law enforcement, while adequate in some parts of the country, is seriously deficient in others; the rich can hire private security to protect their life, liberty, and property, but no such luck for everyone else. This lack of human security is adversely affecting the national economy; people are losing wages due to injury and death that might be prevented by deterring violent crime. Accordingly, Congress decides, pursuant to its power under the commerce and necessary and proper clauses, to pass a law requiring all Americans over the age of 18 to purchase a firearm. Not just any firearm—because Congress has decided there might be a need to shoot at an intruder from a distance and avoid disturbing the neighbors, the firearm must be equipped with a scope and a suppressor (“silencer”), even though most Americans will never need to shoot anyone at a distance or without waking up the neighbors. And, to ensure that there will not be any shortage of bullets, all firearms complying with the mandate must fire a standard cartridge, so many existing firearms will have to either be retrofitted or replaced to comply. The poor will receive a subsidy sufficient to purchase a firearm meeting these standards. Individuals not presenting proof of ownership of a firearm annually, as part of their tax return, will receive a non-tax penalty for non-compliance, which will be garnished from IRS refunds but otherwise not collected. This law is passed by both chambers of Congress and signed into law by President Romney.

Your challenge, should you choose to accept it: find some way to distinguish the Obamacare case, Florida v. Health and Human Services, from this hypothetical.

As everyone knows, it’s Obamacare Week at the Supreme Court (perhaps the less interesting version of Teen Week on Jeopardy!), and today was the main-event showdown over the constitutionality of the mandate. All observers agree it wasn’t the Solicitor General’s finest hour, but Supreme Court cases aren’t really decided by the quality of the oral argument in most cases, and the SG is playing with house money anyway—across the history of the Supreme Court, the solicitor general usually wins (around 70–75% of the time).

Leaving aside the tea leaves, and the wishful thinking that typified people on both sides of the debate going in, the question that strikes me is why the law’s defenders have become so hung up on the mandate question itself. Barack Obama himself campaigned against it in the primaries back in 2008, and even today most people acknowledge that the only real harm from a lack of a mandate would accrue to the insurance companies who’d be stuck taking all comers without getting a mandatory buy-in from the young and healthy, who last I checked were hardly at the top of most liberals’ Christmas card lists. Even there the harm can’t be that great; Obamacare expands Medicaid eligibility substantially, and most of the young and healthy will be staying on parents’ insurance policies well into their twenties (except for, ironically enough, the military’s TRICARE plan). Abolishing the individual mandate wouldn’t get rid of the employer mandate (indeed, neither side is contesting the constitutionality of that). If adverse selection does drive insurers out of business—a big if—doesn’t that just put us one step closer to the single-payer system that liberals (and even some libertarian-leaning conservatives like James Joyner) support?

Michael Waterstone in a post about a Supreme Court case that I really don’t know anything about one way or another writes about Justice Scalia’s concurrence in the judgment in said case:

But to Justice Scalia, this means that (except for race discrimination, which he views as different for stare decisis reasons), he would limit Congress’s Section 5 power to conduct that itself violates the Fourteenth Amendment. I find this flat out wrong. As a textual matter, Section 5 gives Congress the power to enforce the Fourteenth Amendment by appropriate legislation. If all Congress can do is outlaw that which is already unconstitutional, what is the point?

It would seem to me (at least) that the major point of the 14th Amendment was to confer to Congress and the federal government more broadly the power to enforce, upon the states, at least some of the guarantees embodied in the Constitution that had previously been held under Barron v. Baltimore (1833) not to be so-enforceable, in essence to expand Congress’ enumerated powers to encompass enforcement of the amendment itself (which it would not have, absent the Supreme Court reinterpreting Article I of the Constitution to imply Congress has some sort of power to do things that aren’t listed there and not necessary or proper to do the things listed there).

Perhaps viewed through a modern lens where the judiciary routinely has the backing of the executive and legislative branches to overrule the decisions of state governments, such a power seems rather trivial, but in the context of the 1860s when state laws were rarely challenged by the federal government (and when the scope and powers of the federal government were interpreted so narrowly as to rarely infringe on what the states wanted to do) I think explicitly stating Congress had such a power to enforce a new provision of the Constitution, particularly since the 14th Amendment was only the second (after the 13th) to expand the powers of the federal government at the expense of the states (again, given that the Bill of Rights was generally seen at the time as to only apply to the national government, and that the 11th Amendment had actually reduced the powers of the federal government), is hardly meaningless or self-evident.

Here it is, in all its glory:

1. Go to your local office supply store and get some Avery 5395 labels.
2. Print this on them.

You’re welcome.

While I don’t want to wade too deeply into the argument, seemingly initiated by Kevin Drum’s rather absurd notion that Return of the Jedi is the best of the six* Star Wars films, regarding the relative merits of the various films in the series (see also: Doug Mataconis at OTB and Seth Masket), I do want to raise a minor point in response to Dan Drezner on the politics (or lack thereof) in the triology:

The conundrum that political scientists face is that even though the original trilogy contains the better films, the second trilogy has the better politics. There are no politics in Episodes IV-VI, unless one counts Vader and the Emperor’s wooing of Luke. In the prequel trilogy, however, there are lots of parliamentary machinations, tussles between the Jedi Council and the Chancellor, Anakin’s lust for power, and Darth Sidious’ grand strategy for converting the Republic into an Empire.

To a political scientist, that’s good stuff. To human beings interested in enjoying a film, it’s tissue paper without things like strong characters, a good screenplay, and decent plotting.

While I’m slightly sympathetic to Dan’s argument here, the reality is that the politics of the prequel trilogy are, in a word, silly, even leaving aside arguments about whether one would plausibly construct an elective, term-limited monarchy in which the only valid candidates for office are teenage girls, or what sane society would elect the likes of Jar Jar Binks to high office (ok, maybe that one is more credible). Sure, there are depictions of politics, but only within the context of political structures that make no sense, such as the Senate of the Republic (there’s a reason that real legislatures don’t have membership sizes in excess of the population of a mid-sized city) and the Jedi Council (there’s also a reason that real legislatures governing groups of people in the millions have more than a half-dozen, self-selected members).

Slathering on a layer of thinly-veiled BusHitler allegory doesn’t exactly help matters either, if only because in 20 years nobody will get the point Lucas was belaboring—to illustrate the point, imagine if Lucas had taken a 20-minute detour during Empire Strikes Back to establish some boring parallel between the political ascents of “black mayors” Walter Washington and Lando Calrissian, perhaps by giving Lando a bunch of long-winded, boring speeches that paralleled the racial politics of the early 1980s, and then imagine how that would play today.

The other problem of course is that the politics depicted in the prequels is boring. Politics of course need not be boring (for example, the writers of Parks and Recreation manage to make politics entertaining on a weekly basis), but in the hands of Lucas—who’s obviously more interested in the prequels in advancing plot only to serve as a scaffolding for spectacle rather than having the CGI elements there in service of a sensible plot—most of the politics gets reduced to tedious speeches and arguments in what seem to be shot-for-shot remakes of scenes from academic department meetings. In the hands of a skilled writer (or, perhaps more charitably, a writer who cared) I have no doubt the political machinations promised in the prequels might have been interesting; as presented, the Wikipedia summaries of them are positively life-like by comparison.

* Part of me wishes there were only three, but that might edge into the territory of Frequent Commenter Scott’s denial that the sport that is played in the American League qualifies as “baseball.”