Yesterday, on the Senate floor, Senator Max Baucus quoted my August 22 VC post on the constitutionality of an individual mandate. Specifically, he quoted the following passage:
In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate.
This quote was part of a longer speech in which Senator Baucus sought to show that many “prominent legal scholars” believe that “Congress has the constitutional authority to impose a requirement on individuals to maintain health coverage.”
While Senator Baucus quoted me correctly, I think he left out some important context and, as a consequence, may have created a mistaken impression of my views.
My August 22 post was a comment on an op-ed by David Rivkin and Lee Casey. In response to their claim that an individual mandate was unconstitutional under current law, I argued:
While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme.
What I did not mention in that post, but have written repeatedly elsewhere, is that I believe that some of these “recent commerce clause cases,” most notably Gonzales v. Raich, were wrongly decided, and adopted an excessively expansive view of federal power under the Commerce and Necessary & Proper Clauses (see, e.g., here and here). Under these cases, I believe that it is difficult to argue that an individual mandate exceeds congressional authority. Under a more constrained reading of the Commerce Clause, however, I don’t think the argument is so difficult.
In my view, the biggest problem with the argument for the constitutionality of an individual mandate is that it is an argument without limit. Basically, the argument is that if Congress can regulate economic activity X, then it can also mandate that each and every American engage in economic activity X. If this is true for health care, there is no reason why it is not also true for Christmas trees, savings bonds, or GM cars. In short, Congress could mandate universal participation in any economic activity and mandate the purchase of any product or service it chooses, so long as it does so as part of a broader regulatory scheme.
While some of the language in the majority opinion and Justice Scalia’s concurrence in Raich implies Congress has such power, this approach would create a commerce power without limit, an outcome which both Lopez and Morrison said was incompatible with the concept of enumerated powers. so to embrace this view, as I argued in this article, is to eviscerate their holdings. As I believe Lopez and Morrison are more consistent with the text of the Commerce Clause and the principles of enumerated powers, I would prefer that the Supreme Court uphold these decisions and overturn or severely limit Gonzales v. Raich, Wickard v. Filburn, and a few others.
So, while Senator Baucus correctly quoted my belief that an individual mandate is likely constitutional under existing precedent, he omitted my belief that existing precedent is unduly expansive. So while I would expect a lower court judge to uphold the mandate as against a constitutional challenge, I do not think the Supreme Court is required to do so. Indeed, I believe the Court could distinguish Raich, and hold the mandate out of bounds. (For an argument why courts should, and might, do so, see here.)
I should also note that I do not believe that members of Congress should base their decisions on whether to support proposed legislation based upon their prediction of how federal courts are likely to rule. Every member of Congress takes an oath to uphold the Constitution. I am old fashioned enough to believe this oath obligates each and every member of Congress to consider the constitutionality of proposed legislation for themselves, and refuse to vote in favor of legislation they conclude is out-of-bounds, even if they think the legislation would be a good idea. So Senator Baucus should spend less time quoting the assessment of folks like me about what current precedent means for proposed legislation, and more time explaining why he finds this and other legislative proposals to be consistent with the text, structure, and history of the Constitution he took an oath to uphold.
Mark Field says:
This argument wasn’t very persuasive when Jefferson first made it in opposition to the Bank. The problem you have (and he had) is that there is no stopping point on the other side either. That is, there isn’t an obvious line to draw above which we can say “Congress has no power” and below which we can agree “Congress does have power”. The line-drawing is now and always has been arbitrary.
This means that reasonable people can and will disagree on this. And that disagreement is why we have democracy — it’s designed to resolve issues when reasonable people disagree. Your proposal would take the resolution out of the hands of the people (through our representatives) and place it in the hands of the courts. That’s a bad solution now and it was bad when Jefferson wrote.
December 23, 2009, 3:44 pmSteve says:
It strikes me as bizarre to expect that legislators should limit their analysis of constitutionality to “the text, structure, and history of the Constitution” without also considering what learned judges have written over the years regarding the relevant provisions.
December 23, 2009, 3:57 pmj huettl says:
Can not figure out this debate, I thought that the Congress had authority on the United States and that for Congress to have authority over the United States of America that the Constitution had to be Amended.
If it is a question of Commerce, then why would it extend to Commerce between the Several States when you can only get sick in one State at a time? I Can see how you could get sick in the US and have Congress as the law giver, but in the United States of America that SICK person COMMERCE is restricted to Intrastate bounds. I’m so confused.
December 23, 2009, 3:58 pmG.R. Mead says:
Indeed, the Supreme Court has long held that insurance is NOT commerce.
Paul v. Virginia , 8 Wall. 168; 19 L. ed. 357.
This case has been repeatedly extended and applied to all forms of insurance.
This is as naked a power grab against well-decided law as could be.
December 23, 2009, 4:00 pmDilan Esper says:
I can’t stand the individual mandate on policy grounds (and oppose the health care bill because it is in there). However, I don’t see how even if you repealed Wickard and Raich this would be unconstitutional. The legislation creates a national market for health insurance, which is clearly within Congress’ enumerated commerce power– indeed, coordinating interstate activities is one of the principal purposes of the commerce clause. And the mandate is necessary and proper to make the national market function.
Further, the mandate is also probably constitutional under the taxing power (though that is a closer question as it may be a direct tax that must be apportioned.
December 23, 2009, 4:03 pmAllan Walstad says:
Exactly, and this is the problem with supposed justifications of a lot of existing federal activity. If regulation of interstate commerce permits the feds to regulate home-grown grain for home consumption, or to prohibit in-state-grown marijuana for in-state consumption, then there is no principled limit: the feds can require or prohibit any activity whatsoever, unless (maybe) it violates an express prohibition on federal power, such as in the Bill of Rights. (I say “maybe” because the Heller ruling did actually get 4 dissenting votes.) If the power to tax means the feds can tax individuals who fail to purchase health insurance of the sort dictated by the feds, then the feds can require or prohibit any behavior whatsoever simply by taxing the hell out of anyone who does not comply. Similarly with the welfare cause: surely, according to the pols, every law they pass is for the “general welfare.”
I wish good luck to those who seek to hold some sort of line on federal tyranny, or even chip away a little at it. But I doubt we’ll get very far on that until people in general come to understand how deeply the Constitution has been perverted–and develop the appropriate level of outrage.
December 23, 2009, 4:03 pmresh says:
Would you mind explaining why C1 (of A1, S8), the “tax and spend” clause, is not sufficient to ground the bill? Way too much academic talk about the c/c, I think.
I understand that the tax and spend clause is more restricted when it wears the mask of a regulatory device, per se, but I’m fairly sure that Justice Oral Roberts ( fom the great state of PA, thank you very much) delivered the dispositive opinion in “Butler”" on the vast scope of taxation and spending by congress for the “general welfare”; I quote:
“The clause confers a power separate and distinct from those later enumerated [,] is not restricted in meaning by the grant of them,…”
Thus, per “Butler” the limitations (and/or expansions) of the commerce clause are trumped by the mighty depth of the general welfare provision in C1.
December 23, 2009, 4:09 pmOrin Kerr says:
GR Mead writes:
Out of curiosity, I decided to see what the folks at Westlaw would say about that. They have a “red flag” for that case with the following history — the first case cited seeming to sharply limit the Paul language to the dormant commerce clause setting. That is, limiting it to the question of upholding state insurance regulations, not striking down federal ones.
GR Mead, can you comment on what you make of these contrary authorities? I assume you’re familiar with at least some of them, so I’m curious how they fit into your claim. Thanks in advance for your help.
December 23, 2009, 4:15 pmDilan Esper says:
Whatever the legal equivalent of getting pwned is, Professor Kerr just did it to GR Mead.
December 23, 2009, 4:30 pmChris Travers says:
I don’t know about anyone else, but I think we stand on the verge of a watershed moment in the course of American history. The dissatisfaction and sense of betrayal that principled Conservatives felt with the last 8 years of Bush has now been mirrored with a similar sense on the part of Democratic proponents of health care reform.
Indeed I have yet to personally meet ANYBODY on any side of the debate who thinks that an individual mandate to buy private insurance should be seen as Constitutional. The real problem exists with making the argument in a way which admits to bright lines but I haven’t seen anyone say that this sort of power SHOULD be read as included in Congress’s powers.
This is an unusual situation but it leads to a number of very specific problems in the specific analysis that “of course, it’s constitutional.” Most importantly:
1) A Constitutional challenge will probably be mounted from across the political spectrum. This means that lawyers will be reading and perhaps collaborating on briefs with folks who come from very different backgrounds. This raises the possibility that strong arguments may be raised eventually which are at present unforeseen in their detail or that moderately strong arguments could be honed to much greater effect.
2) If there is wide base of opposition to the bill, the court may feel less constrained by precedent and may be granted greater legitimacy in either minimizing past precedent or even overruling it. I think the court will be under a great deal of pressure to throw this out and it will be interesting to see what the court decides to do and why.
We may see this as a great turning point in our direction as a nation and a point where we as a country can come together to oppose such a blatantly oppressive measure.
December 23, 2009, 4:31 pmCornellian says:
Not even a thank you to Sen. Baucus for calling you a “prominent legal scholar?”
December 23, 2009, 4:35 pmDangerMouse says:
Adler,
You got played by the libs. You should’ve seen it coming.
December 23, 2009, 4:41 pmMark Field says:
You should ask around more. Dilan has already said he opposes the mandate but thinks it’s Constitutional. I haven’t decided on the mandate, but I also think it’s Constitutional. Lots of people think it is, including, I suspect a majority of the current Supreme Court.
December 23, 2009, 4:43 pmG.R. Mead says:
Of course — the only one of real significance is S.E. Underwriters:
U.S. v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 546-547, 64 S.Ct. 1162, (1944).
As a result, many insurance companies now carefully incorporate in separate intrastate subsidiaries that are closely segregated to maintain their legally local character — and to avoid conflicting regulatory dictates. Insurance remains very much a state-run affair — at the moment.
In short, the holding in Paul — “insurance is not commerce”– was explicitly upheld, conditioned only on an examination of the transactional details of the business activities in handling the insurance to determine a “chain of events which become interstate commerce.” Wickard analysis, essentially, and since modernly approved in the regulatory regimes of items actually “in commerce.” per Gonzalez v. Raich. Question is does Gonzalez or Lopez establish the high water mark in this instance — and are they really the same bodies of water. Gonzalez in involves a commodity albeit illegeal “in commerce” whislt both insurance and guns in schools are still not “in commerce” but merely “affecting” it.
This mandate, insofar as it relies on the S.E. Underwriters argument, seems to run afoul of the holding in Lopez:
Interestingly, the Paul case also involved a Privileges and Immunities issue, and predates Slaughterhouse by five years. Since the scope of “affecting” commerce clause reach was nipped by Lopez, and the current post-Heller McDonald Chicago/Oak Park handgun ban case case was expressly certified on P & I grounds, this will likely make for some interesting precedent or dicta fodder on the individual mandate issue.
December 23, 2009, 4:54 pmJRL says:
Says you.
December 23, 2009, 4:55 pmjrose says:
Basically, the argument is that if Congress can regulate economic activity X, then it can also mandate that each and every American engage in economic activity X
That’s not the argument as I understand it. Instead, the mandate to engage needs to be tied to the success of the regulatory scheme (or possibly in some other way rationally related). In the case of insurance, and the requirement to not base coverage on preexisting conditions, that linkage is clear. But in your hypothetical Christmas tree example, we would first have to understand the regulatory scheme to see if a mandate had a rational relation to the scheme. We cannot a priori assume it.
December 23, 2009, 4:59 pmjheath says:
Oren predicted earlier that because of the historic association of economic liberties with the 14th Amendment, the Court will reject P&I incorporation in _McDonald_. I’d still like to know if he thinks the questions about the individual health care mandate will play into that, or how. I.e. if economic liberties were revived via the 14th Am, might they prove a limit even to the federal commerce clause? Will the Court reject P&I incorporation for that reason, or read Due Process more narrowly?
The health-care issue might go beyond the contours of the CC alone, and reach the question of conflicting with a right. One might also make a 1st Amendment argument (I think); will Jehovah’s Witnesses be compelled to purchase coverage for health care they refuse to seek? Can Congress require me to buy a book? Tickets to a show? Which book? Which show?
December 23, 2009, 5:01 pmG.R. Mead says:
Dear Dilan:
It will help you in your legal career to learn what the “overruled on other grounds” citation flag stands for — and last I looked, blogposts don’t use Blue Book citation to flag such a narrow distinction, especially when the statement as given is still good law, even if distinguished …
Merry Christmas!
December 23, 2009, 5:10 pmChris Travers says:
“A majority of the court would uphold it as Constitutional based on past precedents” and “it should be seen as Constitutional” are two separate statements. I hear a lot of people saying the former, but nobody who I have personal meetings, not cyberspace) has said the latter. In fact a lot of people including Prof. Adler seem to say they think the courts would up hold it but they wish they wouldn’t.
To be clear, are you saying we SHOULD read the Constitution to allow such an individual mandate? Or just that the courts would uphold such a mandate as being in areas where the court should simply defer to Congress?
December 23, 2009, 5:17 pmlgm says:
There are roundabout ways to legislate a mandate that have been around (and presumably survived court challenges?) for a long time. One would be raise the personal income tax by $20,000, then offer a $20,000 income tax rebate to anyone with a qualified health insurance plan.
December 23, 2009, 5:26 pmChris Travers says:
One more possibility:
A Constitutional challenge which fails to get the law overturned could provide a backlash of the sort we saw in Kelo v. City of New London. The court may say that they are unwilling to wade into the problem and the ball would then be set squarely in Congress’s court in terms of dealing with outrage from across the political spectrum.
I think a Constitutional challenge, even if it fails in the courts, may have a substantial impact on the shape of any legislation which takes effect.
December 23, 2009, 5:40 pmLeo Marvin says:
Chris,
Are you saying the SCOTUS Justices believe the Constitution ought to be read differently than the way they actually read it?
December 23, 2009, 5:42 pmLongCat says:
Is there a legal equivalent of “oh snap!”? It seems more than appropriate in this instance.
December 23, 2009, 5:47 pmgeokstr says:
It was quite obvious long ago that the left views the constitution as merely a rhetorical hindrance, “just words”. It is “living”. In other words, it means only what they can find a friendly leftist judge to say it means.
From the beginning of Obama’s candidacy, many of us could see this assault on the constitution coming, and that assault has just begun.
In a few months at most, this administration will begin seeking to silence the few media where conservatives can actually hear the other side, and organize and communicate – Fox News, talk radio and the internet. I’ll go on record right now predicting that we’ll have the usual leftists here defending the imposition of various parts of the “Fairness Doctrine” under similar Orwellian names, as being totally constitutional. It will be the same exact ones now defending everything Obama does.
And I will be here to make sure they get called on it too.
December 23, 2009, 5:55 pmHans Bader says:
The individual mandate is unconstitutional, even though it’s far from being the worst part of the bill.
Congress can regulate ACTIVITIES that substantially affect interstate commerce. But it can’t adopt a regulation merely because the REGULATION (rather than the activity) affects interstate commerce. If it did, it could always regulate, simply by making the regulation burdensome.
The Supreme Court’s decision in United States v. Morrison, 529 U.S. 598 (2000), requires that an activity, to be regulated, be economic, and have a qualitative relationship to interstate commerce — not just have an aggregate impact on the national economy (as the gender-motivated violence at issue in Morrison surely did have).
The individual mandate doesn’t just regulate how people contract with insurers, or how they contract medical care (which would be OK under Raich). It makes young people who do not need healthcare, would never have gone to the doctor, and have no need for health insurance, buy useless health insurance, an economic activity they would NOT have engaged in.
I didn’t want health insurance as a young man. I didn’t go the doctor or dentist for more than a decade, and never regretted it. For much of that period, I had health insurance as a job benefit, and was once rebuffed when I asked that my employer, a nonprofit law firm, cancel the insurance to cut its costs (and perhaps enable it to give me a raise as a result). The insurance was useless, and I didn’t use it.
December 23, 2009, 5:56 pmDilan Esper says:
LongCat and G.R. Mead:
I think that Professor Kerr pointing out that posting an “insurance is not commerce” case from 200 years ago without disclosing that there are numerous intervening authorities that have whittled away at the doctrine constitutes a pwning. And it isn’t really cured by coming back and saying “well, the later authorities can be read narrowly”. The point is, the 200 year old case may not be as broad as Mead claims it is, and he should have indicated what the current doctrine is rather than simply citing the one, 200 year old case, full stop.
So yeah, he was pwned.
December 23, 2009, 5:59 pmMark N. says:
I find it depends, like Raich, on what kind of person I’m talking to. In that case, few people I know who are legally inclined (even somewhat) are comfortable with the holding, and even people not very legally inclined are surprised, to say the least, when told Raich concluded that the power to regulate “interstate commerce” was sufficient to regulate local growing of plants on one’s property for private consumption. But on the other hand, most people I know feel that federal drug regulation as a whole can’t possibly be unconstitutional— perhaps through some sort of conservatism (in the resistance-to-change sense), in that federal drug regulation has been the law of the land for a century or so, and overturning it would be quite a change, which many (most?) people are uncomfortable with. So therefore if people feel that I’m arguing that the Constitution prohibits the federal government from banning drugs, people immediately suspect I’m some sort of radical, and my argument must be wrong, because it contravenes 100 years of settled practice.
I suspect there might be some similar splits on a health-insurance mandate, depending on how legally inclined the people you’re asking are, and whether you manage to steer the discussion towards commerce-clause terminology or more towards policy considerations. (It’s somewhat interesting that in the American liberal v. conservative spectrum, the policy considerations fall mostly on opposite sides in Raich and the current insurance-mandate debate.)
I notice that people are much more willing to accept a mandate-is-unconstitutional argument that doesn’t also imply that Medicare is unconstitutional. Asking people to believe the latter results in some of the same reactions as asking people to believe that federal drug prohibition is unconstitutional— one comes across as asking for a radical change in settled practice.
December 23, 2009, 6:04 pmDilan Esper says:
I notice that people are much more willing to accept a mandate-is-unconstitutional argument that doesn’t also imply that Medicare is unconstitutional.
Despite thinking both are constitutional, I will say that these two issues are distinct questions (i.e., that one could theoretically be constitutional while the other is not). Medicare is straightforward tax-and-spend and its regulations are necessary and proper to the taxation and spending scheme. You don’t even need to analyze it under the commerce power, any more than you need to analyze Social Security under the commerce power.
The individual mandate, as I note above, raises a colorable issue as to whether it really is a form of tax (and a permissible one) that can fall within the taxing power. The cleaner issue is that it is part and parcel of an effort to create a national insurance market, which is a regulation and coordination of interstate commerce. But that’s a completely different ground for constitutionality than the ground that Medicare sits upon.
December 23, 2009, 6:12 pmThe Volokh Conspiracy » Blog Archive » The Myth of an Expert Consensus on the Constitutionality of an Individual Mandate says:
[...] Archives « The Constitutionality of an Individual Mandate — A Reply to Sen. Baucus [...]
December 23, 2009, 6:12 pmjrose says:
I agree a regulation cannot be self-defining to permissibly affect interstate commerce by the fact it is burdensome. But that doesn’t rule out regulations that are necessary and proper to support regulations of activity. For example, the insurance mandate supports the requirement to not use preexisiting conditions in coverage decisions.
I’m pretty sure Scalia doesn’t agree with you that the activity has to be economic.
December 23, 2009, 6:52 pmjrose says:
Take the requirement that preexisting conditions not be used in coverage decisions. Assuming insurance isn’t commerce, that doesn’t regulate commerce, but does affect commerce in a manner that does not “pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power” (or any general power to require things on the states).
Similarly, the mandate supports the preexisting condition requirements which (as above) affect interstate commerce. That seems to be a straightforward conclusion, not a pile of inferences. The fact that you moved the analysis one step further removed from interstate commerce strikes me as unimportant to the conclusion.
December 23, 2009, 7:05 pmbpbatista says:
Baucus misquoted you because he was distracted by the BJ he was receiving from his mistress under the speaker’s podium a la “Police Academy.”
December 23, 2009, 7:06 pmJay says:
GR Mead–States have the more or less unfettered power to regulate insurance today, but only because of a statute, the McCarran-Ferguson Act, 15 USC 1101. Congress passed it in the 1940s specifically to avoid the result of South-Eastern Underwriters, which was viewed, at least, as finding that most insurance was insterstate commerce and regulable by the feds. Mc-F provides that state law reverse-preempts otherwise applicable federal laws as they related to insurance. I’m not really sure how you can have a serious discussion of this issue without acknowleding it.
December 23, 2009, 7:16 pmMark Field says:
Yes, I’m saying it SHOULD be read that way. So, if I’m understanding him correctly, is Dilan. Of far greater moment, so is Jack Balkin.
I’m not sure I understand your second position. I believe it’s Constitutional in part because I think the Court should defer to Congress; that’s what I think the necessary and proper clause does (and what Madison and Marshall thought too).
Credit where credit is due: Hamilton said it first. And, of course, Washington and the First Congress both agreed with him.
December 23, 2009, 7:43 pmDesiderius says:
LM,
“Are you saying the SCOTUS Justices believe the Constitution ought to be read differently than the way they actually read it?”
Stranger things have happened.
December 23, 2009, 7:48 pmMark N. says:
I agree with that. During the course of the health-care-reform debate, though, many of the arguments against the constitutionality of various proposed reforms have been quite broad (example), and seemingly would cover Medicare (sometimes by design, since their authors believe Medicare is unconstitutional). That seems particularly common among people arguing that a public option would be unconstitutional, since if Medicare’s constitutional, it becomes much harder to argue that something that’s basically “Medicare expanded to everyone” is not.
But yes, I don’t mean to imply that someone focused specifically on the unconstitutionality of a purchase mandate can’t distinguish that from things like Medicare or a public option.
December 23, 2009, 7:55 pmThe Constitutionality of an Individual Mandate — A Reply to Sen. Baucus | Liberal Whoppers says:
[...] the original post: The Constitutionality of an Individual Mandate — A Reply to Sen. Baucus Share this [...]
December 23, 2009, 8:01 pmDilan Esper says:
Yes, I’m saying it SHOULD be read that way. So, if I’m understanding him correctly, is Dilan.
Yep. My problem with commerce clause jurisprudence is that it extends to purely local activities and purely noncommercial ones, based on the equivalent of penumbras and emanations (i.e., the idea that you can regulate any activity no matter how local and noncommercial as long as it bears an attenuated connection to interstate commerce). That’s why Wickard and Raich are terrible decisions.
But creating an interstate insurance market is not only obviously interstate commerce, it’s right down the middle of the commerce power. The whole point of the thing was to allow the federal government to coordinate interstate markets. The mandate is clearly necessary and proper with respect to the preexisting condition regulation (it’s the mechanism that makes that reform workable), so it has to be constitutional.
Bad policy, yes. But clearly constitutional, even under a narrower conception of the commerce clause than currently prevails.
December 23, 2009, 8:31 pmJ. Aldridge says:
Okay, lets say take one of the courts several defined meanings of “regulating commerce” and apply it to ObamaCare. That would mean Congress also has the power to reform Canada’s or China’s Health Care because that would also be “regulating commerce.”
It is very clear their idea of what “regulating commerce” means is flawed.
December 23, 2009, 8:41 pmJ. Aldridge says:
December 23, 2009, 8:47 pmKirk Parker says:
Hans Bader,
No they can’t; not by any reading of the Constitution that preserves some limitations on Congressional power. Otherwise you get Wickard etc…
Mark Field,
Well, other than the specific grants of powers found in the actual text of the Constitution–but why bring that in at this late date?
December 23, 2009, 9:11 pmMark Field says:
Other grants of power are irrelevant. The authority to regulate commerce among the several states is itself a specifically granted power.
The point I was making is that when it comes to deciding what’s “necessary and proper” in order to regulate such commerce, there’s no logical place to draw a line.
December 23, 2009, 9:36 pmPubliusFL says:
The fact that a given interpretation of the authority to regulate commerce among the several states makes all the other grants of power perpetually irrelevant should be some indication that that interpretation of the authority to regulate commerce among the several states must be missing something. If that’s how broad the power was meant to be, why isn’t Article I, Section 8 a lot shorter? Why all the talk about the delegated powers of Congress versus the reserved power of the states if Congress can (presumably) tell me how often to brush my teeth or how much toilet paper to use?
December 23, 2009, 10:53 pmMark Field says:
You need to separate two distinct things. One is whether the activity subject to regulation constitutes “commerce among the several states”. The health care reform bill does that, as Dilan already noted. The only question left, then, is whether the mandate is “necessary and proper” for the exercise of that power.
The N&P clause has been treated since the beginning (at least since Federalist 44) as leaving it up to Congress to decide what’s “necessary and proper”. As Madison said in Federalist 44, “If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers.”
Any other interpretation would mean government by judiciary. If you think that’s desirable, then I guess we’ll have to agree to disagree.
The scope of Congressional power under the commerce clause itself is a different issue and a long debate which I’ll leave aside for now.
December 23, 2009, 11:53 pmTweets that mention The Volokh Conspiracy » Blog Archive » The Constitutionality of an Individual Mandate — A Reply to Sen. Baucus -- Topsy.com says:
[...] This post was mentioned on Twitter by alejandra and Eugene Volokh, Eugene Volokh. Eugene Volokh said: The Constitutionality of an Individual Mandate — A Reply to Sen. Baucus: Yesterday, on the Senate floor, Senato.. http://bit.ly/6GIKln [...]
December 24, 2009, 1:49 amG.R. Mead says:
It codified the “business of insurance” which still remains, (O Dilan, dear) as S.E Underwriters tells us — “not commerce.” Just because Congress builds a fence on its property line does not mean it has the lawful power to move the fence willy-nilly into the States jurisdiction — though it has squatted IMO for a number of years in far too many areas. Under existing law however, it is only the ancillary activities that are not the proper “business of insurance” that are deemed commercial.
The point being that to approve the individual insurance mandate the Court will have to overrule Lopez (and Morrison) (not that there are not several J.’s who would gladly do so) and allow what it drew the line at — allowing the commercial effects of non-commercial activity to be subjected ipso facto to commerce power regulation. Raich does not go there — Marijuana is illicit commerce, but an object of commerce nonetheless, and thus fits the Wickard scheme.
Insurance does not.
December 24, 2009, 2:20 amG.R. Mead says:
Amen.
You’ve gotten the issue but the wrong end. As things stand now insurance is NOT commerce, and only certain ancillary activities enter into the interstate commercial realm. What is being done is the effective prohibition of withdrawing from the interstate aspects of a market (shades of Wickard) but in an area that does not in the first instance constitute an object of commerce –insurance.
This is non sequitur. “Pre-existing condition” exclusions are also “not commerce” so this does not change my analysis. If Lopez and Morrison stand this should not — and sadly, vice versa.
If mandating insurance, why not certain foods ? Why not mandate contraceptives or selective sterilization? Margaret Sanger has not been dead that long. Or why not mandate births, by simply taxing women who do not remain pregnant from year to year ? The Parentland needs lots of healthy workers and soldiers you know… This stuff gets very dystopian on the short fast ride.
By compelling both producers and consumers to enter an EXCLUSIVELY interstate market, involuntarily – and which does not now exist — and yet without allowing actual commercial competition among the companies license in the several States — we have wholly abandoned voluntary economics. It is a pure command economy, make no mistake. But that is a wholly separate issue — touching ultimately on the republican form of government. If we are the government’s to command — is that government any longer a republic — “the thing” commanded by “the people.”
The spade is a spade. Where there are czars, can commissars be far behind?
December 24, 2009, 2:59 amjrose says:
Firstly, I expect the Court to find insurance is commerce, and then your reasoning doesn’t apply.
But secondly even if insurance isn’t commerce, validating the insurance mandate does not require allowing the commercial effects of non-commercial activity to be subject ipso facto to commerce power regulation (and thus doesn’t reverse Lopez or Morrison). The mandate of a non-commercial activity is necessary and proper for the overall regulation of the non-commercial activity which in turn has a substantial affect on interstate commerce (South-Eastern Underwriters). That’s a straightforward, common sense linkage that is distinguished from the remote chain of inferences in Lopez and Morrison.
December 24, 2009, 7:55 amJoe says:
An individual mandate is basic to health insurance policy worldwide in nations that have some form of national health insurance policy as such. Policies as a whole much better than ours. But, I guess that only carries us so far.
It makes young people who do not need health care, would never have gone to the doctor, and have no need for health insurance, buy useless health insurance, an economic activity they would NOT have engaged in.
Prof. Balkin covered this issue too. Young people “need health care” … they might self-medicate, you know, go to the pharmacy to buy aspirin or something, but they make health care decisions too.
Likewise, often insurance is necessary when we don’t expect it to be (that’s the whole point — do we expect our homes to burn down?), including accidents and sudden illness.
People w/o health insurance, especially those without much money like many students, take a risk here, at times costing society a lot of money and at times more (consider contagious diseases not dealt with or loss of productivity) in the process. This at times dangerous free ride is apparently necessary for “freedom” or something.
[Many don't buy it because its too expensive. Many of these people will benefit from the subsidies in the bill for low income individuals. Young people in countries where health care is cheap strangely enough don't mind taking part in the system. I call b.s. on the 'freedom' line except to the extent its a rational economic decision, if one that at times burdens society as a whole.]
Congress can regulate ACTIVITIES that substantially affect interstate commerce. But it can’t adopt a regulation merely because the REGULATION (rather than the activity) affects interstate commerce.
Health insurance purchases are “activities” that affect interstate commerce. Self-medication (usually via purchases that affect interstate commerce) also are “activities” as well. Regulations can also be made to protect interstate commerce, which is the point here.
I don’t find the constitutional arguments credible, particularly (bottom line this is where it matters) pursuant to current law. I myself would go a step further and argue for some substantive health care right that the government can (and should) provide, and base it on constitutional grounds. But, I need not.
As to “direct taxes” … they have been narrowly defined (except for a dubious 5-4 ruling on income taxes) and it’s a stretch to say this is one. It is called an excise by the promoters, as I recall. Prof. Balkin also covered that ground.
December 24, 2009, 10:38 amPubliusFL says:
You sum up Federalist 44 as Madison declaring that it’s “up to Congress to decide” what’s N&P. But Madison said that “[i]n the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts.” In order for the judiciary department to have any affect on the success of such a usurpation, the judiciary would need to formulate some conception of what is necessary and proper that is a little more stringent than “whatever Congress says is necessary and proper.”
December 24, 2009, 10:59 ambyomtov says:
the biggest problem with the argument for the constitutionality of an individual mandate is that it is an argument without limit. Basically, the argument is that if Congress can regulate economic activity X, then it can also mandate that each and every American engage in economic activity X. If this is true for health care, there is no reason why it is not also true for Christmas trees, savings bonds, or GM cars.
But Congress already provides tax benefits for engaging in some transactions, which is all the mandate does. Is an R&D tax credit an unconstitutional mandate that companies must engage in R&D?
There are tax credits for various energy conservation activities, including buying hybrid or clean diesel cars. Are these unconstitutional mandates?
Somehow the words “mandate” and “penalty” obscure the fact that what is going on is that Congress is using the tax code to make certain transactions more attractive. We are not talking about jailing those without insurance, after all.
December 24, 2009, 12:12 pmRPT says:
HB:
I can understand the desire to avoid medical or dental care, as you were able to do for the ten year period you described. However, it is only the grace of circumstances, perhaps combined with heredity and good living habits, which kept you out of car accidents, away from exposure to communicable disease, or free from random accidental or sports injury or sickness. Had any of those events befallen you, it is likely that you would have appeared in an emergency room or urgent care center somewhere. Unless you are independently wealthy your care would have been government subsidized in one manner or another.
December 24, 2009, 12:33 pmMark Field says:
Both the Executive and the Judiciary have refused to do so. The Executive since Washington signed the Bank bill over Jefferson’s objection based on the N&P clause, and the Judiciary since at least McCulloch v. Maryland. That leaves Madison’s final remedy — if you don’t like policy, change your legislator.
December 24, 2009, 12:48 pmDavid Nieporent says:
I don’t see how the N&P clause can possibly be read as a statement regarding judicial review (one way or the other). Surely there’s no reason the issue of whether something is “necessary and proper” would require any more deference to Congress than the issue of whether something is a bill of attainder.
December 24, 2009, 1:25 pmDavid Nieporent says:
But wait a minute. The constitution doesn’t say “may pass laws relating to commerce among the states”; it says “regulate commerce among the states.” How is creating a market “regulating commerce”? Regulating commerce assumes said commerce already exists.
December 24, 2009, 1:32 pmDavid Nieporent says:
I don’t see how anybody can read that boldfaced language and claim that Federalist 44 says that it “leaves it up to Congress,” Mark. It expressly says the opposite. Indeed, it expressly says that the N&P clause is no different than any other congressional power in this regard.
December 24, 2009, 1:43 pmDilan Esper says:
It codified the “business of insurance” which still remains, (O Dilan, dear) as S.E Underwriters tells us — “not commerce.”
G.R., do you have a single recent authority where ANY insurance matter was declared to be outside the scope of Congressional authority?
As a general rule, when I go into an oral argument and my opponent’s best case is 200 years old, I pretty much know I am going to win the case.
(In any event, the health care reform bill SETS UP an interstate insurance market. In other words, even if insurance wasn’t interstate commerce before, the insurance exchanges set up by this bill clearly are interstate commerce.)
December 24, 2009, 2:55 pmDilan Esper says:
How is creating a market “regulating commerce”? Regulating commerce assumes said commerce already exists.
David, law is not just words on a piece of paper– it’s a method of organizing our society and organizing our lives.
When you have to play semantic word games to reach the result you desire, you are no longer engaging in actual legal reasoning.
In any event, to spell it out– LOTS of laws create markets where none existed before. A good example is the tradable permits system under the Clean Air Act, which creates new, not heretofore existent markets for sulfur dioxide and several other pollutants. And yet nobody has ever thought that was unconstitutional. Certainly no case has so held.
December 24, 2009, 2:59 pmMark Field says:
Because that’s the way the Supreme Court has read it since McCulloch v. Maryland:
“We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.”
What you’re suggesting is that a grant of power should instead be treated as a limitation of power. And any such attempt at limitation would be chimerical (Madison’s word):
“Without the SUBSTANCE of this power [N&P clause], the whole Constitution would be a dead letter. Those who object to the article, therefore, as a part of the Constitution, can only mean that the FORM of the provision is improper. But have they considered whether a better form could have been substituted? There are four other possible methods which the Constitution might have taken on this subject. They might have copied the second article of the existing Confederation, which would have prohibited the exercise of any power not EXPRESSLY delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms “necessary and proper”; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference.
Had the convention taken the first method of adopting the second article of Confederation, it is evident that the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term “EXPRESSLY” with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction. It would be easy to show, if it were necessary, that no important power, delegated by the articles of Confederation, has been or can be executed by Congress, without recurring more or less to the doctrine of CONSTRUCTION or IMPLICATION. As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but, at the same time, not EXPRESSLY granted.
Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the PARTICULAR POWERS, which are the means of attaining the OBJECT of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same.
Had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, NOT NECESSARY OR PROPER, it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper; and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made. Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.”
December 24, 2009, 3:17 pmPubliusFL says:
It seems to me that you read McCulloch v. Maryland as though the words “appropriate” and “plainly adapted to that end” do not exist. A plain reading of the opinion is consistent with the idea that the judiciary has some role in considering whether the means determined by Congress to be necessary and proper actually are.
You go on to quote a bunch of stuff from Madison that doesn’t get around the fact that Madison also said: “In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts.” It may be that, over the course of the following centuries, the executive and judiciary departments came up wanting in this respect, but that historical fact does not change Madison’s position in Federalist 44.
December 24, 2009, 3:32 pmG.R. Mead says:
With Burford abstention, even — Barnhardt Marine Ins., Inc. v. New England Intern. Sur. of America, Inc., 961 F.2d 529 (5th Cir. 1992).
Dilan, you just illustrated the fundamental problem with modern jurisprudence. Used to be, the older a principle of law the more weighty it was — now it is just plain unfashionable as Grandma’s bloomers…
Personally, I find fashion to be a poor guide to durable legal rules or public policy… but I think rain is wet, so who am I to judge…
So Congress can bootstrap itself some jurisdiction by causing non-commerce to become commerce by compelling people to transact in it … Hmm. Take that further and see where it gets you —
How is it that to mandate purchase of an insurance policy is NOT the regulation of THE core element of the “business of insurance” — and thus “not commerce” under Paul’s unreversed and NOW CODIFIED holding ?
December 24, 2009, 3:53 pmMark Field says:
Here’s a simple test: find a case in which the Supreme Court said that an Act of Congress was not “necessary and proper”.
In my view, and taking the entirety of what Madison said in Federalist 44 into account, he meant essentially what Hamilton said in Federalist 33:
“But it may be again asked, who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the Union? I answer first that this question arises as well and as fully upon the simple grant of those powers, as upon the declaratory clause: And I answer in the second place, that the national government, like every other, must judge in the first instance of the proper exercise of its powers; and its constituents in the last. If the Foederal Government should overpass the just bounds of its authority, and make a tyrannical use of its powers; the people whose creature it is must appeal to the standard they have formed, and take such measures to redress the injury done to the constitution, as the exigency may suggest and prudence justify.”
And as Hamilton said to Washington in support of the Bank:
“The degree in which a measure is necessary, can never be a test of the legal right to adopt it. That must be a matter of opinion; and can only be a test of expediency. The relation between the measure and the end, between the nature of the mean employed towards the execution of a power and the object of that power, must be the criterion of constitutionality not the more or less of necessity or utility. …
The means by which national exigencies are to be provided for, national inconveniences obviated, national prosperity promoted, are of such infinite variety, extent and complexity that there must, of necessity be great latitude of discretion in the selection and application of those means. Hence consequently, the necessity and propriety of exercising the authorities intrusted to a government on principles of liberal construction. …
It leaves therefore a criterion of what is constitutional, and of what is not so. This criterion is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the constitution–it may safely be deemed to come within the compass of the national authority.”
In short, the basic rule is that Congress can choose any means it wants (subject to presidential veto, of course) as long as it doesn’t choose one which violates some other clause in the Constitution.
December 24, 2009, 4:04 pmDilan Esper says:
Dilan, you just illustrated the fundamental problem with modern jurisprudence. Used to be, the older a principle of law the more weighty it was — now it is just plain unfashionable as Grandma’s bloomers…
G.R., that’s cute, but that’s stupid legal analysis. The reason we look for recent cases is for some confirmation that the doctrines are still vital and haven’t been overtaken by more recent authority.
For instance, in the context of the currently pending cases on state regulation of firearms, the 19th Century cases that summarily rejected extending the Second Amendment to the states are not going to carry a lot of weight, because since that time we have had a sea-change as to how the incorporation issue is approached.
So no, old cases are old cases. Doctrines wither on the vine. They get ignored. They are supplanted, and other doctrines come into play. Which is why when you march into court with a 200 year old case, the first thing the judge is going to ask you is “where’s the proof that this is still good law?”.
I will look at your 1992 case later, when I have the time. But suffice to say, I doubt it holds that congressional power over insurance is constitutionally restricted on the ground tha that insurance isn’t commerce.
December 24, 2009, 4:13 pmDavid M. Nieporent says:
Huh? No. Which power do you think is being limited?
Rather, I am suggesting that a grant of power is inherently limited to the granted power. Congress has no powers other than what it has been granted, and the only power granted here is to pass laws which are both necessary and proper. Any law which fails to satisfy both conditions is simply outside the scope of the granted power.
December 24, 2009, 4:29 pmG.R. Mead says:
You can be legal realist all you want, but it is incumbent on the proponent of the jurisdiction of the sovereign of presumptively limited power to show its supremacy to the OTHER sovereign of presumptively unlimited jurisdiction — not upon the skeptic of that power to rebut a presumption that does not exist.
If a legislatively codified and standing Supreme Court holding won’t persuade you — nothing will – because you doubt the WILL of the Court to apply the standing rule — Well, that just makes plain that it is NOT a legal issue at all — but purely apolitical one, and the voluntarist infection of the law continues apace… Is the role of the Court to contain the law within the politics or to contain the politics with the law… ?
It may be all nineteenth-century of me and all, but, hey …
December 24, 2009, 4:33 pmMark Field says:
The N&P clause is included within Art. I, Sec. 8 as one of the express powers granted to Congress. What you are suggesting is that this granted power somehow should serve as a limitation on the other powers granted. That makes little sense.
December 24, 2009, 5:44 pmDilan Esper says:
G.R., it isn’t “legal realism” to insist that one’s position be supported by good law. and you can masturbate to your image of the “real” constitution but which the most brilliant legal minds of each generation, sitting on the supreme court, haven’t come close to accepting, but at the end of the day, like any masturbation, it might be pleasurable, but it doesn’t change anything.
in our legal system, recent precedent confirms that propositions are still good law, and the courts have a heck of a lot of say as to what the constitution means. and it can’t really be otherwise– we have to have an arbiter for these things, and appointing some people who have forgotten more about the constitution than you or i are ever going to know is a decent method of doing it.
December 24, 2009, 6:27 pmDavid Nieporent says:
I don’t understand how you’re reading me as suggesting that. The other powers are what they are.
What doesn’t make sense is that you’re reading a limited power as unlimited, which requires reading the 10th amendment out of the constitution.
December 24, 2009, 8:15 pmMark Field says:
No, the other powers are made effective by passing laws “necessary and proper” to their exercise. When you restrict what’s “necessary and proper”, you necessarily (heh) restrict the extent of the remaining powers.
For example, if you take the position (as Jefferson did) that establishing the Bank was not “necessary” to the regulation of commerce or the collection of taxes, then you’ve limited Congressional power to regulate commerce/collect taxes. You’re interpreting one granted power in such a way that it limits another.
December 24, 2009, 8:32 pmDavid Nieporent says:
That doesn’t make any sense at all, unless you treat the N&P clause as superfluous.
To use your example: Did Congress have the power to establish the Bank under the commerce clause or taxation clause? If so, then the N&P clause isn’t doing any work at all in your interpretation; it might as well not be in there. On the other hand, if Congress didn’t have the power to establish the Bank under the commerce clause or taxation clause, then those clauses aren’t being “limited” by Jefferson’s claim; they have exactly the same force they otherwise would have, in the absence of the N&P clause.
The only way to see the N&P clause as a “limitation” is to view the other powers of Congress as unlimited in the absence of that clause, which is unsupportable.
December 24, 2009, 10:10 pmG.R. Mead says:
Oh, dear — if this is the level of your legal analysis — I really should attend one of your oral arguments …
You have good law. You just don’t like it, and you have not answered the question: How is mandating purchase of insurance not the core element of the “business of insurance” which IS, as a matter of good constitutional and statutory law, already stated, outside the commerce power…
Well, why all the bother about writing any reasoned argument — just poll the Court and be done with it. Oh, wait…
December 24, 2009, 11:46 pmMark Field says:
You’re making Hamilton’s argument. Jefferson argued that while it was true that Congress had the power to regulate commerce and collect taxes, and while it was also true that the Bank would be helpful in collecting taxes, it was nevertheless unconstitutional because the Bank was not “necessary and proper” to achieve those goals. Jefferson wanted to restrict “necessary and proper” to cases of strict philosophical necessity (i.e., to cases where the means used would qualify as a sine qua non). This would have limited Congressional exercise of the other powers because the means available would have been few.
While Jefferson’s is an extreme case, ANY limitation on the N&P clause has the same effect — it would constrict Congressional exercise of its other powers by constraining the means used to achieve those ends. As I said, though, it makes no sense to treat a grant of power as a form of restricting other powers independently granted.
December 25, 2009, 12:16 amDavid Nieporent says:
No, I’m not; I’m making Jefferson’s.
You didn’t answer my question, though, which wasn’t rhetorical: did Congress — in your view — have the power to establish the Bank under the commerce clause/tax clause?
Right; it says “necessary and proper,” not “helpful.”
Limited them compared to what, Mark? The starting point is that Congress has no powers whatsoever. Then the Constitution grants it certain specific powers, and the N&P clause expands that grant by allowing it to pass legislation to execute those power. It’s not doing any “limiting” at all.
Saying that the N&P clause requires that the laws be necessary and proper is not a “limitation on the N&P clause”; it is the N&P clause.
And I’m not.
The only way my argument would be doing that would be if you think that the “other powers” were unlimited to begin with — but if that’s your view, then the N&P has no effect at all, and is totally superfluous. It makes no sense to treat a grant of power as redundant, which is what you’re doing.
December 25, 2009, 12:34 amDilan Esper says:
G.R.:
I finally got the chance to read the Bernhardt case you cited, which you claimed stood for the proposition that insurance is considered outside congressional power under the Commerce Clause. In fact, it says nothing of the kind. It holds that a STATUTE, the McCarron-Furguson Act, provides that insurance is a state affair. That, of course, has nothing to do with the commerce power.
Meanwhile, in Humana Inc. v. Forsyth, 525 U.S. 299, 306 (1999), the Supreme Court said this:
“Prior to our decision in United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944), we had consistently held that the business of insurance was not commerce. See, e.g., Paul v. Virginia, 8 Wall. 168, 183, 19 L.Ed. 357 (1868) (‘Issuing a policy of insurance is not a transaction of commerce.’); see also South-Eastern, 322 U.S., at 544, n. 18, 64 S.Ct. 1162 (collecting cases relying on the Paul generalization). The business of insurance, in consequence, was largely immune from federal regulation. See St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 539, 98 S.Ct. 2923, 57 L.Ed.2d 932 (1978) (‘[T]he States enjoyed a virtually exclusive domain over the insurance industry.’). In South-Eastern, we held for the first time that an insurance company doing business across state lines engages in interstate commerce. See 322 U.S., at 553, 64 S.Ct. 1162. In accord with that holding, we further decided that the Sherman Act applied to the business of insurance. See id., at 553-562, 64 S.Ct. 1162.” (emphasis added)
This language was joined by ALL NINE JUSTICES SITTING ON THE COURT AT THAT TIME. In other words, as of 1999, you didn’t have ONE SINGLE VOTE ON THE COURT for your position. Not even Thomas or Scalia.
The idea that any modern court considers insurance to be “not commerce” is, not to put a fine point on it, an absolute lie. And while you can, in your own wet dreams, think the commerce clause means anything you want it to mean, in the real world, insurance is a form of commerce and creating an interstate market for insurance is a regulation of interstate commerce.
Case closed.
December 25, 2009, 5:14 amjrose says:
Eugene persuasively argued “necessary” means helpful, relying in part on how “necessary” is used in Article 2 and Article 5. Barnett conceded that the meaning of necessary is not in play.
December 25, 2009, 8:28 amMark Field says:
Yes. But this question overlooks the nature of the disagreement. Nobody argued that the Bank was itself an act under the tax power. Rather, the Bank was “necessary and proper” to the exercise of that power. It was a proper means to a specifically granted end.
As for the rest of your argument, it makes no sense. To restrict the means of exercising a power is to restrict the power itself. “You have the war power to defeat Japan in WWII, but you can’t use nuclear weapons.” “You have the power to throw pitches to Babe Ruth, but not spitballs.” Etc.
As both Madison and Hamilton stated, the grant of a power implicitly includes everything necessary to effectuate that power. The N&P clause simply makes that explicit. Now you (and Jefferson) want to use that granted power to restrict the means available to exercise the other granted powers.
December 25, 2009, 10:37 amG.R. Mead says:
Ah. Dilan. “Learn to Love Leviathan!” “Resistance is Useless!”
I really need to go to one of your oral arguments. It would be immensely entertaining.
I have no illusions about the brutal nature of what is in play. I also have no doubts as to the essential danger it represents to the object of a system of LAW.
Legal realism is an acknowledgment that the purpose of law has essentially failed. That is the world we live in. But the way back is NOT to engage in that legal realism. That is the end of law as any thing other than the lackey of the political winds of the moment.
Law is the sharp knives — politics is the bludgeon. The present health insurance dispute is a gang-clubbing without question — but the arguments, legally speaking, are not the abusively simplistic dropkick you imply. Your blade is too dull.
Why did Congress enact McCarran-Ferguson ? (work on your spelling) Because the lapdog post-Lochner Court had cavilly threatened a boundary that even the New Deal Congress ITSELF acknowledged was quite constitutionally problematic.
If I adopted your legal realism (and abusive attitude) as a analytical tool — why not go whole hog and just get the guns and pipe-bombs and let us end the charade of “law.”
Any one can dictate from a position of force. Legal realism is simply a test of ultimate force by proxy. It is not the practice of law — it is parimutuel wagering on the result of the political fight that the decision is standing in for. You wonder why discourse is so ugly — look in the mirror — law is supposed to mediate and preclude those fights, not substitute for them.
Back to law — read the holding: nine justices signed on to the statement that “doing business across state lines … [is] interstate commerce” Duh. Ipso facto.
The Court has not held and you will find no case stating that “the business of insurance is commerce” — not yet, anyway — it has simply said that when a company engaged in non-commerce conducts commerce across state lines it is in interstate commerce. Duh. Again. We are not talking about advertising, solicitation, employment, borrowing, combining or conspiring or any other ancillary legal or illegal commercial activities of the non-commercial activity of insurance — we are talking about the mandated purchase of a policy of insurance.
You continue to duck with court-spotting legal realism predictions the material question OF LAW put to you. How is the mandate of purchasing a policy NOT the core “business of insurance” which remains (if law be our guide) NOT commerce?
S.E. Underwriters even flagged the exceedingly sharp nature of the distinction it was drawing in the last note of the main decision:
Would I want to rely on comfort in that in the legal realist world you crow for that is heading for the cliff before us ? — Certainly not.
Will I stand on it to fight for the principle that LAW should rule? — Damn straight.
December 25, 2009, 12:44 pmDilan Esper says:
Legal realism is an acknowledgment that the purpose of law has essentially failed.
Funny, I read “The Bramble Bush” and some of the other foundational texts of legal realism and that didn’t seem to be the point that was being made.
You guys seem to think “legal realism” is a slur that refers to anyone who thinks what the Supreme Court does matters. For your information, Antonin Scalia and Clarence Thomas think what the Supreme Court does matters. Does that make them legal realists? They’d blanch at the accusation.
Why did Congress enact McCarran-Ferguson ? (work on your spelling) Because the lapdog post-Lochner Court had cavilly threatened a boundary that even the New Deal Congress ITSELF acknowledged was quite constitutionally problematic.
Look, I agree that McCarran-Ferguson was pushback against the Supreme Court. But it didn’t change the fact that insurance is commerce, nor did it reverse the Court’s constitutional holdings.
It’s useful to note as well that Congress has also enacted all sorts of insurance regulations since then. Do you think Medicare is unconstitutional? Medicaid? Medicare Advantage? Medicare Part D? ERISA? COBRA? Kennedy-Kassebaum? Each one of those involves the federal government in the business of insurance and thus stands as an exception to McCarran-Ferguson. But none of them are unconstitutional, because the dumb holding that you cited that insurance does not constitute commerce is no longer good law and not one Supreme Court justice accepts it.
If I adopted your legal realism (and abusive attitude) as a analytical tool — why not go whole hog and just get the guns and pipe-bombs and let us end the charade of “law.”
The fact that in the past 75 years, we’ve had a lot of Supreme Court decisions that you don’t like and very few pipe bombs (indeed, we had MORE pipe bombs during the more economically libertarian era that preceded it) might inform a thinking person that maybe there isn’t as straight a road to serfdom as one might have thought.
The Court has not held and you will find no case stating that “the business of insurance is commerce” — not yet, anyway — it has simply said that when a company engaged in non-commerce conducts commerce across state lines it is in interstate commerce. Duh.
This makes NO sense. Especially since the SAME court just a couple of years before held that non-commercial activities do not become commercial just because they might have interstate effects (see US v. Lopez).
In any event, at this point it’s you against the world. There isn’t a law professor or judge in America who accepts your interpretation. Everyone thinks the Supreme Court has held that insurance is commerce.
You continue to duck with court-spotting legal realism predictions the material question OF LAW put to you. How is the mandate of purchasing a policy NOT the core “business of insurance” which remains (if law be our guide) NOT commerce?
1. If the “law” means anything other than whatever you make up, the business of insurance across state lines is interstate commerce.
2. The mandate is necessary and proper to a scheme of regulation of the sale of insurance in a national market.
Seriously, if you made these arguments to a court you’d end up sanctioned like Orly Taitz did.
December 25, 2009, 2:17 pmG.R. Mead says:
Sigh. The actual commerce conducted by an otherwise non-commercial activity is not “effects on commerce” it IS commerce — even though its non-commerce component remains … The Catholic Church is not commerce — but its interstate activities that ARE in commerce are under federal commerce jurisdiction.
The Church cannot combine or conspire under the Sherman act for poaching religious adherents — but it could conceivably and reasonably be liable for using the instruments of interstate commerce for monopolizing the market on, say, church-zoned properties so as to preclude the establishment of non-Catholic church facilities.
It really is not a hard line to draw. The problem is the causes that demand we not draw such lines based emotivist appeals against clear reason. The presumption that we will not ultimately — and thus ought not even try is just a self-fulfilling prophecy …
As to your lack of understanding on what legal realism entails or is used to justify (i.e — “what we can probably get away with in a court — disregarding inconvenient reason and consistency”) — and the continued attitude …
Legal realism as an observation is simply an acknowledgment of imperfect human struggling in the institutions of law–
Legal realism as a basis for decision is simply abandoning law for ukase.
The child is the prophet of the man.
http://wcbstv.com/local/gang.attack.honor.2.1386340.html
Get ready, then.
December 25, 2009, 2:46 pmDavid Nieporent says:
You’re contradicting yourself. Your first sentence says “Yes,” and your third sentence says “No.” Either the power to establish a Bank is a regulation of commerce/a tax, in which case the commerce clause/tax clauses provide authority for it, or it’s not, in which case it must be justified under the N&P clause.
My question doesn’t overlook the nature of the disagreement at all. Whether it was N&P is, obviously, the relevant question; nobody is denying that if it was N&P, then the Bank was constitutional. What you’re saying is that even if it wasn’t N&P, then it was constitutiona (Otherwise, it would make no sense to claim that the N&P was “restricting” anything.)
To “restrict” a power first requires that the power would otherwise be broader. To use a similar analogy to the one you used: A baseball rule that says, “You may use a DH for the pitcher.” You’re claiming that “for the pitcher” is a “restriction” on the DH power, but it isn’t; there isn’t any DH power without the DH rule. The rule is a grant of power to use the DH for the pitcher. It broadens the manager’s power from not being allowed to use a DH to sometimes being allowed to use a DH; it doesn’t restrict his power.
So you’re doing exactly what I’m saying: arguing that the N&P clause is completely superfluous. In your view, it does absolutely no work in the Constitution; whatever powers Congress has otherwise, the N&P clause adds nothing to them, because those powers are already “inherent” in the constitution. That’s obviously wrong; it’s a basic tenet of statutory interpretation that all words are to be given effect.
“Restrict” them to things necessary and proper. Because that’s what it says. But as noted above vis-a-vis the DH, that’s not a “restriction”; that’s the grant of power itself.
Without the N&P clause, the powers don’t exist. With the N&P clause, the power exists to pass N&P laws. Broader, not restricted.
December 25, 2009, 5:16 pmMark Field says:
There’s no contradiction because the N&P clause references the others.
No, I’m saying that it’s up to Congress, not the Courts, to judge what’s N&P. The only thing Courts will do is judge the constitutionality of a law. IOW, Congress can’t use as “means” laws which violate the provisions of the BoR and/or Art. I, Sec. 9.
Nonsense. The examples I gave above show that restricting the means also restricts the ends.
No, I’m saying what Madison and Hamilton said: that the N&P clause gilds the lily. The only restrictions on Congressional power are to be found in the Constitution itself, not some absract notions of what might be philosophically “necessary and proper”. Judges don’t get to just make stuff up in striking down a law, they have to point to a particular clause. You want courts, not Congress, to legislate based on their own arbitrary predilictions.
Now you’re contradicting both Madison and Hamilton. Sorry, but that’s not persuasive; when they agree, it’s pretty hard to claim they’re wrong. The other powers are full and complete in and of themselves.
You can use other clauses in the Constitution to restrict Congressional power, but you can’t use Congress’s own power to restrict its power. That’s nonsense.
December 25, 2009, 8:05 pmDavid Nieporent says:
That’s an entirely separate question. We’re not talking about who makes the decision yet (although as you yourself quoted Madison as saying, “in the first instance,” it’s up to the executive and judiciary), but what the standard is.
That’s what we’re discussing — whether the law is constitutional. You need to point to an affirmative grant of power for it to be constitutional.
One of the BoR is the Tenth Amendment. Powers not delegated to Congress are reserved to the states or people. Was Congress delegated the power to tax? Yes. Was Congress delegated the power to pass laws necessary and proper for executing the power to tax? Yes. Was Congress delegated the power to pass laws which were NOT necessary and proper for executing the power to tax? No.
That requirement is found in the constitution itself, and it’s not an “abstract” notion about “philosophy,” any more than “due process” is. And you have it backwards; the only powers of Congress are to be found in the Constitution itself. Congress doesn’t have all powers except those forbidden to it; Congress only has the powers delegated to it.
It’s less persuasive to claim that a grant of power has no meaning at all because the power already existed even without that language. I’ve checked my copy of Madison’s notes on the convention, and notwithstanding Fed. 44, I see nothing to suggest that this provision was understood by the delegates to be superfluous. But in any case, this entire line of argument misses the underlying point. Let’s suppose that in fact the provision does just “gild the lily,” that as you argue the power to pass N&P laws is “inherent” in the other provisions of Article I, Section 8, even without the N&P clause. Okay, and? That still doesn’t change the fact that Congress has no power to pass laws which are not necessary and proper.
Congress doesn’t have the power to pass laws which are unnecessary and improper; there’s no such grant of power in the constitution. And the tenth amendment makes that abundantly clear. Thus, I’m not “restricting” Congress’s power at all. You keep using that word incorrectly. To “restrict” means to take away powers that Congress would otherwise have; I’m not doing that. I’m saying — just as the Constitution does — that Congress does have the power to pass laws which are necessary and proper.
December 25, 2009, 10:52 pmMark Field says:
No, that’s the only question.
No, if you claim a law is unconstitutional, the burden is on you to show that. And you can’t show it by arguing that it’s not “necessary and proper” because the courts won’t (and shouldn’t) judge that. You have to show some other provision which is violated.
And it’s Congress which gets to decide if the means chosen are N&P.
It’s not only abstract, it’s a policy decision (except when the means chosen violate some other provision of the Constitution). You are arguing for government by judiciary — judges weighing every single statute against a test they make up to decide if a law is N&P. That’s not just cumbersome, it’s absurd and the very definition of oligarchy.
Agreed. But the provision is unenforceable because Congress gets to decide it.
In passing I’d note that the debates at the Convention strike me as irrelevant to any “true” originalist. It’s the decisions at the ratification conventions which count for that, and Federalist 33 and 44 are far better evidence of the understanding of the clause than secret debates. In addition, here’s James Wilson at the PA ratifying convention:
“when it is said that Congress shall have power to make all laws which shall be necessary and proper, those words are limited and defined by the following, “for carrying into execution the foregoing powers.” It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.”
The anti-federalists all agreed that Congress would be the sole judge of this power (though they, of course thought that was a basis for opposing ratification). Some examples:
Centinel: “Whatever law congress may deem necessary and proper for carrying into execution any of the powers vested in them, may be enacted….”
An Old Whig: “”To make all laws which shall be necessary and proper” is in other words to make all such laws which the Congress shall think necessary and proper,–for who shall judge for the legislature what is necessary and proper?”
No, I’m pointing out that the government by judiciary you’re so anxious to impose on us would limit the means available to Congress above and beyond what the Constitution limits. And those limits would restrict Congressional power granted.
December 25, 2009, 11:47 pmperplexed says:
“Dilan Esper says:
I can’t stand the individual mandate on policy grounds (and oppose the health care bill because it is in there). . . The legislation creates a national market for health insurance, which is clearly within Congress’ enumerated commerce power– indeed, coordinating interstate activities is one of the principal purposes of the commerce clause. And the mandate is necessary and proper to make the national market function.”
I have to say that I think you have it completely backwards. The mandate comes first and then the new health insurance “products” simply define what it is that people are mandated to purchase. It makes no logical sense to say that it is necessary to force consumers to purchase a product in order to establish a market for the product. It does make logical sense to say that you first want to force all citizens to purchase some level of health insurance, and then start regulating the market to make sure that the health insurance package you want to mandate is offered. In other words the mandate justifies the created market, not vice versa. In fact, I’d go even further and say that, once Congress forces all residents to “purchase” a product, it makes no sense to say that there is “commerce” in the producct, any more than it is sensible to say that theft is a commercial transaction. Commerce implies voluntary transactions. This health insurance bill is nothing more than a glorified subsidy transfer that should have been implemented under the General Welface provision, but Congress is hijacking the insurance industry to so nothing more than implement an entitlement program.
March 24, 2010, 1:43 amJorn says:
The Volokh Conspiracy ? The Constitutionality of an Individual Mandate — A Reply to Sen. Baucus adler@gigemail.net
June 22, 2010, 3:54 am