I thank Orin for his thoughtful response and believe I understand much better our areas of disagreement. I am happy to discuss the “line drawing” problem instead of “slippery slopes.” In McDonald, there was always a serious line drawing problem with reviving the Privileges or Immunities Clause. But there is no comparable line drawing problem with striking down economic mandates. Congress has gotten along quite well for 220 years without the power to mandate economic activity when regulating interstate commerce. Barring Congress from imposing economic mandates will affect no other laws now on the books, though it will cut short a potential slippery slope into all sorts of economic mandates Congress might dream up to avoid taking political responsibility for enacting taxing and spending schemes.
I also think I see better now what Orin is driving at when he claims that: “The challenge to the constitutionality of the individual mandate tries to engage in just the kind of line-drawing that the Justices have concluded they can’t do. It tries to carve out a zone of economic regulation that Congress is forbidden to enact. But exactly what is the zone? Where exactly is the line?” Yet, it is easy to distinguish regulating and prohibiting voluntary economic activity, on the one hand, from requiring such activity on the other. The Justices never had to make this distinction before, because Congress never before attempted to impose an economic mandate on the citizenry at large. And only one law will be in jeopardy if the Supreme Court declines to extend its current doctrine from activity to inactivity.
As to why the line should be drawn here, there are many powerful reasons, some of which I identify in my paper. But the ability to draw a principled line is easy: it is the difference between acts and omissions. Of course, Orin (like Justice Breyer) may think that the rationale for regulating economic activity may extend to inactivity, and he is entirely free to argue why the Supreme Court ought to recognize such a power in Congress. Indeed, that issue will be debated seriously from now until the end of this litigation. But that is not a “line drawing problem.” That is a substantive legal debate requiring a substantive analysis.
I did not have Orin in mind when I wrote the following in my paper (which you can download here), but I think it may well describe how he is approaching this issue:
Until 1995, law professors believed that, beginning in 1937 with cases such as NLRB v. Jones & Laughlin Steel, United States v. Darby, and Wickard v. Filburn, the Supreme Court had so expanded the scope of the commerce power of Congress that Congress could do anything it wanted provided it was not violating some other constitutional constraint, like say the First Amendment.
So law professors were shocked when the Supreme Court in 1995 held in United States v. Lopez that the Gun Free School Zone Act unconstitutionally exceeded the commerce power of Congress. They interpreted this case as an aberration. By 1995, Congress had become so complacent about the scope of its powers that it did not even bother to make findings about why the act was within its commerce power. Most law professors were confident that, in the future, the Court would uphold any law if Congress made adequate findings that the activity it sought to regulate had a substantial effect on interstate commerce.
So law professors were, once again, surprised when the Supreme Court in 2000 held in United States v. Morrison that the Violence Against Women Act was unconstitutional-notwithstanding extensive hearings and findings about the substantial effects of violence against women on interstate commerce. In the wake of Morrison, law professors started to believe that the Court just might be serious about drawing a line between what is national and what is local, and lower courts started to be more receptive to Commerce Clause challenges.
In one such case I helped bring on behalf of Angel Raich and Diane Monson, the Ninth Circuit held that the Controlled Substances Act was unconstitutional as applied to marijuana grown at home for medical use as authorized by state law. When the Supreme Court in Gonzales v. Raich turned away this challenge, however, law professors breathed a sigh of relief that they had been right all along. They reverted to their pre-Lopez understanding that Congress can do pretty much whatever it wants under its commerce power.
Indeed, the new conventional wisdom is that, so long as Congress establishes a sweeping and ambitious regulatory scheme, it can reach any activity-whether economic or not-that it deems to be essential to that scheme. In other words, the more grandiose the claim of power by Congress, the stronger is its claim of constitutionality.
Hence some law professors have breezily asserted that Congress may, for the first time in American history, use its commerce power to mandate that all individuals in the United States engage in economic activity. After all, this mandate is essential to Congress’s grandiose new scheme regulating private insurance companies. So under Raich, it must be constitutional.
The rest of my paper explains why I believe this conventional wisdom is an inaccurate understanding of existing doctrine governing “necessity” in the context of the commerce power, and also why the Court should not expand beyond existing doctrine.
Given that Orin quotes from Justice Kennedy’s concurring opinion in Lopez, we ought also to note Justice Kennedy’s concurring opinion in Comstock where he insisted that:
The operative constitutional provision in this case is the Necessary and Proper Clause. This Court has not held that the Lee Optical test, asking if “it might be thought that the particular legislative measure was a rational way to correct” an evil, is the proper test in this context. Rather, under the Necessary and Proper Clause, application of a “rational basis” test should be at least as exacting as it has been in the Commerce Clause cases, if not more so. . . .
I had thought it a basic principle that the powers reserved to the States consist of the whole, undefined residuum of power remaining after taking account of powers granted to the National Government. The Constitution delegates limited powers to the National Government and then reserves the remainder for the States (or the people), not the other way around, as the Court’s analysis suggests. And the powers reserved to the States are so broad that they remain undefined. Residual power, sometimes referred to (perhaps imperfectly) as the police power, belongs to the States and the States alone.
It is correct in one sense to say that if the National Government has the power to act under the Necessary and Proper Clause then that power is not one reserved to the States. But the precepts of federalism embodied in the Constitution inform which powers are properly exercised by the National Government in the first place. See Lopez, 514 U. S., at 580–581 (Kennedy, J., concurring); see also McCulloch, supra, at 421 (powers “consist[ent] with the letter and spirit of the constitution, are constitutional”). It is of fundamental importance to consider whether essential attributes of state sovereignty are compromised by the assertion of federal power under the Necessary and Proper Clause; if so, that is a factor suggesting that the power is not one properly within the reach of federal power.
The opinion of the Court should not be interpreted to hold that the only, or even the principal, constraints on the exercise of congressional power are the Constitution’s express prohibitions. The Court’s discussion of the Tenth Amendment invites the inference that restrictions flowing from the federal system are of no import when defining the limits of the National Government’s power, as it proceeds by first asking whether the power is within the National Government’s reach, and if so it discards federalism concerns entirely.
These remarks explain why the Court ignores important limitations stemming from federalism principles. Those principles are essential to an understanding of the function and province of the States in our constitutional structure.
True, Justice Kennedy expresses his concern here with compromising state sovereignty, rather than categorical distinctions like the difference between “economic” and “noneconomic” activity, or activity and inactivity. (Recall that Justice Kennedy did join the majority opinion in Lopez that drew the line between “economic” and “noneconomic” activity, while also concurring.) But the issue of Congress’s power to impose economic mandates was not before him in Comstock. And this passage does not sound to me like a justice willing to overthrow the traditional effort to draw a line between the enumerated power of Congress and powers “reserved to the states respectively or to the people.”
Of course, if Orin is right that a majority of the justices have indeed given up on all efforts to draw a “line” around Congress’s power to each any activity — or inactivity — it deems convenient to its regulation of interstate commerce, then the challenge to the mandate will surely fail–as will the scheme of limited and enumerated powers. That would be breaking new ground indeed. I wonder if the time is ripe for that sort of judicial declaration?