When discussing the “constitutionality” of a governmental action, one must distinguish between three senses of “constitutionality”: (1) What the Constitution says and means; (2) what the Supreme Court has said and meant, and (3) whether there are five votes on the Supreme Court to uphold or invalidate the action. Because of my well-known view that the text of the Constitution has a meaning that is independent of the opinions of the Supreme Court–a meaning that must remain the same until properly changed–as well as my exchanges with Orin on this blog, readers may be forgiven if they think my constitutional objections to the individual health insurance mandate are based on the original meaning of the Constitution–or what Orin calls the Constitution as it “ought to be.” But I have been very clear in my publications and media statements that I am not offering an originalist objection to the individual health insurance mandate. Under the original meaning of the Constitution, for example, Congress would have no power to regulate the health insurance business since insurance contracts–like the practice of medicine–are not “commerce,” which is why both activities have traditionally been regulated by the states. But I have not made anything like this objection; and neither have the Attorneys General in their lawsuit.
Instead, I have objected that the mandate that individuals purchase health insurance from a private company is unconstitutional under existing Supreme Court doctrine–the second of the three senses of unconstitutionality. And, in response to confident predictions that the Supreme Court will uphold the mandate, I have suggested that they may be less inclined to do so if the bill continues to be unpopular, one or both houses of Congress flip parties, a serious repeal effort is blocked by a presidential veto or filibuster in the Senate, and the “benefits” promised by the bill have yet to be implemented. Everyone should know I think this last type of analysis should have nothing to do with whether a measure is or is not “constitutional,” but I do not deny these factors are relevant to whether the Supreme Court will uphold or invalidate an act of Congress. My point is that those who confidently predict that the Supreme Court will uphold this bill are not taking these sorts of factors adequately into account.
Part of my constitutional assessment (in the second sense) involves the unprecedented nature of this claim of power by Congress. (The other part is analysis of what the Supreme Court has said about the Commerce power since the New Deal.) Having made this observation back in December in my co-authored paper for the Heritage Foundation, my confidence in its accuracy has been increased by two developments. The first is the change of subject to the Tax power of Congress. Think about it. If the claim that this legislation was as clearly authorized by post-New Deal Commerce Clause doctrine as so many law professors seem to assume, then why almost immediately change the subject to the power of Congress to tax? This switch telegraphs a fundamental weakness of the Commerce Clause claim.
The second development is the inability of supporters of the bill to generate any examples of when the Commerce Clause power has been exercised in the past to mandate individuals engage in economic activity by entering a contract with a private company. True the early Militia Act mandated militia members provide their own private arms, but this was not an exercise of the Commerce Power. And we have been treated to the discovery of an early statute taxing sailors and spending the money on hospitals for their care. Of course, this is very much akin to how Medicare works (which is clearly “constitutional” in the second and third senses), and the regulation of navigation is squarely within the original meaning of the Commerce Clause (as I have shown in Restoring the Lost Constitution: The Presumption of Liberty
The only examples currently bandied by law professors concern tax credits for certain activities–like buying a home–within the income tax code. How to distinguish between a mandate coupled with a fine or penalty and a general income tax that allows for credits for certain activity is an interesting conceptual question. But our intuitions run strongly against this equivalence. Indeed, the President publicly denied this was a tax–which would break his no taxes on persons making less than $200K promise–and the bill itself refers to the provision as a “requirement” backed by a “penalty.” No, I am not claiming that the Court is bound by how the bill is worded, but this wording–and the President’s defense of the mandate–reflects an underlying reality, as well as a deep intuition that a monetary fine for violating a mandate is not the same as the failure to receive a tax credit. Indeed, the express rationale for the measure in the bill itself rests on the Commerce not the Tax power:
The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased. (Page 125 of Senate bill)
Indeed the bill provides for refundable “tax credits” for qualified insurance plans in different section than the “individual responsibility” section containing the mandate.
Consider this: If Congress had ever done anything like this before, we would all be able to think of countless things we are mandated to do by the federal government upon pain of a monetary penalty enforced by the IRS. Yet, apart from registering for the draft, I cannot think of much of anything the federal government mandates of people simply because they are alive, much less mandate pursuant to its Commerce Clause power. Of course there are a host of federal regulations that tell you how you must engage in particular economic activities should you choose to do so. Laws against discriminating with respect to employment or public accommodations come immediately to mind, but there are lots of others as well.
But regulating HOW one engages in economic activity (or prohibiting an activity) and mandating THAT one engage in economic activity are not the same thing. It is the latter that is unprecedented. To uphold such a claim of power, the Supreme Court would have to go beyond its existing precedents–and well beyond them. Of course, the smart money says the justices will do just that–but this is a reference to the third sense of constitutionality described above: counting to 5 votes.
In light of all this, I am genuinely intrigued by this comment Orin posted on Prawfsblawg (in which he is partially defending me from a criticism there):
I should add that I don’t buy Randy’s argument: He is trying to take one issue (factually, whether the federal government has done this precise thing before) and treat it as if it answered a quite different issue (legally, the doctrine of stare decisis).
This comment raises two questions of great interest to me.
First, what are the Commerce Clause precedents that Orin thinks cover the personal health insurance mandate and why? I think I am pretty familiar with the post-New Deal Commerce Clause cases on which my own analysis relies, so I would be very interested to learn which of these cases cover this type of mandate. Second, what theory of stare decisis is Orin employing here? Of course all law profs know that any two situations can be “factually” distinguished if only by the time and place. So a simple difference in facts does not necessarily take a case out of a “precedent.” But I do not believe we are talking about this type of factual difference. We are talking about the difference between telling people engaged in economic behavior HOW they must act, and telling people who are doing nothing at all THAT they must engage in economic behavior. This “factual” difference seems to be really germane–as germane as the traditional and intuitive (though sometimes problematic) act-omission distinction in private law.
So, putting the Tax power issue to one side, I am very curious to know on what basis Orin thinks this personal mandate is governed by Supreme Court Commerce Clause precedent. I ask this in all sincerity, as I would greatly benefit from Orin’s considered explanation of how he thinks the doctrine of stare decisis applies here and decides this issue. Of course, Orin is under no obligation to post any reply to this query. However, since he seems to have a view on this, I am most curious as to what it may be.
One final thought. If, for some reason, we are not suppose to carefully consider what exactly the Supreme Court HAS said about the Commerce Clause power in its decisions–along with what it has NOT said in those decisions–and we are also not supposed to take seriously the independent meaning of the text of the Constitution itself, then ALL “constitutionality” means is a prediction of what the justices will do (sense three). And this would seem to be the epitome of the Rule of Men, as opposed to the Rule of Law. It is certainly nothing that any nominee to the Supreme Court could claim and still be confirmed.
UPDATE: Thanks to Orin for his clarification. I take it from his response that he is not claiming that the personal insurance mandate is authorized by previous Supreme Court Commerce Clause cases. No apology is needed. I have been using “unprecedented” in both senses. But the fact this sort of thing has never been done before does figure into there being no judicial precedent for it — provided that it differs from what has been done before in a legally relevant way. That regulating HOW one engages in economic activity differs from mandating THAT you engage in economic activity is relevantly different is intuitively obvious, and I believe will be obvious to at least some judges. It takes a pretty counter-intuitive comparison with tax credits against a general tax — or a highly counter-intuitive denial of the act-omission distinction — to equate a mandate with a regulation or prohibition. While these counterintuitive moves can be understood by law professors and intellectual types, I think they are not an easy sell for a variety of reasons — including the fact that they would so greatly expand federal power beyond where it has ever been extended before. When this practical implication is combined with what the Supreme Court actually said in NLRB, Lopez, Morrison & Raich, I think the argument that a personal mandate is unconstitutional (in the second sense) is highly plausible, and the breezy assertion by some professors and pundits that the mandate is constitutional under existing doctrine is not supported by a close reading of these opinions–or so I claimed in my Heritage paper last December. If, that is, the Supreme Court follows its reasoning in previous cases when this issue comes before it, which returns us to issue 3.
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