The Supreme Court’s 2005 decision in Gonzales v. Raich ruled that Congress’ power to regulate interstate commerce gives it the power to ban possession of medical marijuana that had never crossed state lines or been sold in any market anywhere. It was easily the broadest-ever Supreme Court interpretation of the Commerce Clause. When I first considered the question, I thought that Raich’s reasoning was expansive enough to justify the individual mandate. I still believed that the mandate was unconstitutional (primarily because I have always argued that Raich was a horrible decision). But I thought that it could probably go through under Raich. And the government has in fact relied heavily on Raich in its brief in the Virginia case challenging the mandate.
A closer look at Raich, however, led me to reconsider my initial view. I presented my revised position in the amicus brief (pp. 6-10) I recently wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars. As I explain in my 2006 article on Raich and my September 2009 post on the individual mandate, Raich gives Congress extremely broad power in three separate ways:
1. Raich holds that Congress can regulate virtually any “economic activity,” and adopts an extraordinarily broad definition of “economic,” which according to the Court of encompasses anything that involves the “production, distribution, and consumption of commodities.”
2. Raich makes it easy for Congress to impose controls on even “non-economic” activity by claiming that it is part of a broader regulatory scheme aimed at something economic.
3. Raich adopts so-called “rational basis” test as the standard for Commerce Clause cases, holding that “[w]e need not determine whether [the] activities [being regulated], taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding.” In legal jargon, a “rational basis” can be almost any non-completely moronic reason for believing that a particular claim might be true.
Let’s look at each of these in turn, as I did in more detail in the brief. A closer look reveals that none of them actually requires lower courts to uphold the mandate.
I. The Court’s Definition of “Economic Activity.”
The Raich Court’s definition of economic activity is extremely broad, even ridiculously so. For example, it gives Congress the power to regulate your decision to eat dinner at home, since that decision entails the “consumption” of commodities such as food. Expansive as this definition may be, the mere status of being uninsured doesn’t qualify. Choosing not to purchase health insurance involves neither production, nor distribution, nor consumption of commodities. Indeed, an individual who chooses not to purchase insurance has chosen not to consume or distribute the commodity in question. And, obviously, he or she is also not “producing” any commodity by refusing to purchase insurance. By contrast, the Raich defendants were engaged in “economic activity” since they were both producing and consuming marijuana.
II. The Broader Regulatory Scheme Rule.
This rule too is very broad in the way it allows Congress to regulate even “noneconomic” activity so long as there is even a remote connection to some sort of regulation of commerce. However, the power outlined by the court applies only to the regulation of “activity.” The Court itself repeatedly uses the term “activity” to describe the object of regulation. It does not cover regulation of inactivity or the refusal to engage in economic transactions. Angel Raich and Diane Monsen had not been inactive or merely refused to engage in some transaction. To the contrary, they were actively involved in the production and consumption of homegrown medical marijuana. The Court’s logic could be extended to cover regulation of inactivity. But Raich itself doesn’t do this.
III. The Rational Basis Test.
This part of the Court’s reasoning is harder to interpret than the two issues described above. Still, it cannot be the case that the rational basis test is triggered by the mere invocation of the Commerce Clause by the government. If it were, then the Court would have had to overrule cases such as United States v. Lopez and United States v. Morrison, both of which failed to apply the rational basis test. Moreover, such an approach would give the federal government a virtual blank check for unlimited power, since all the government would have to do to get near-total judicial difference is claim that they were operating under the Commerce Clause. For these and other reasons, it is reasonable to conclude that the rational basis test applies only to regulations of activity rather than inactivity. I cover this admittedly more complex aspect of the case in greater detail in my brief (pp. 9-10).
What changed my mind about Raich’s relevance? Partly, it was co-blogger Randy Barnett’s insightful analysis of the issue in this December 2009 paper coauthored with Todd Gaziano and Nathaniel Stewart. But even more important was the simple experience of carefully re-reading Raich with this issue in mind. Once you look closely at the text of the Court’s opinion, it’s hard to avoid the conclusion that it simply doesn’t address the possibility that Congress might try to regulate inactivity or force ordinary citizens to engage in economic transactions. Cynics will claim that I changed my mind because I dislike the Obama plan on policy grounds. Maybe so. But I was just as opposed to the plan when I held a different view on the relevance of Raich. What changed was not my view of Obamacare (which was always negative), but my view of the relevant legal doctrine.
Obviously, a court could try to extend Raich to cover forced economic transactions. If Congress has virtually unlimited power to regulate activity, why not inactivity? Perhaps the Supreme Court will eventually do just that. But Raich itself doesn’t compel any such result. To the contrary, the wording of the Court’s opinion and the way in which it interacts with previous decisions such as Lopez and Morrison suggests that its logic is confined to regulation of activity. And, as I explain in the brief (pp. 11-14), what is true of Raich is even more true of the Court’s less expansive pre-Raich Commerce Clause decisions. If the government can’t win the Commerce Clause issue using Raich, it can’t win it under any other existing precedent either.