Assumptions and “Activities” in Commerce Clause Jurisprudence

In his response to my post on why going without health insurance doesn’t qualify as an “activity” that Congress can regulate under the Commerce Clause, Orin Kerr claims that my reasoning “begins with an assumption as to how much power Congress has, and he then reasons backwards to infer the meaning of ‘activity’ in order to make that assumption correct.” Therefore, Orin believes that the argument won’t persuade anyone who isn’t already inclined to agree with it.

What Orin ignores is that the relevant “assumption” – that Congress doesn’t have unlimited authority to use the Commerce Clause to regulate anything and everything – is not idiosyncratic to me. It has been repeatedly reaffirmed by the Supreme Court, even in those cases where it has interpreted Congress’ powers most broadly, including even Gonzales v. Raich, which distinguished the statute it upheld from those that don’t regulate “economic activity” defined as the production, consumption, or distribution of a commodity; the state of not having health insurance doesn’t qualify under any of these three counts.

As the Court explained in United States v. Lopez, “[t]he Constitution . . . withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation.” Orin is fond of citing Justice Kennedy’s views. So it’s worth noting that Justice Kennedy recently wrote an opinion emphasizing the need to enforce the federalism “principles that control the limited nature of our National Government.” In his Lopez concurrence, cited in Orin’s post, Kennedy also noted that “In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far.” That seems to squarely reject the argument that the individual mandate is constitutional merely because not having health insurance has some kind of economic motive or has an impact on markets. And of course that claim is precisely what the lower court judges who have upheld the mandate rely on, especially in what I dubbed the “broad version” of their argument.

If my analysis in the previous post is correct, the Commerce Clause rationale for the individual mandate can’t be squared with the principles endorsed by the Court and Justice Kennedy because it would give Congress virtually unlimited authority to mandate anything it wants, so long as the mandate has some effect on prices within some market (which is true of virtually any requirement).

If I were basing the analysis on my own view of the correct interpretation of the Commerce Clause, I would simply rely on the powerful arguments suggesting that Raich and many other modern Commerce Clause cases can’t be squared with the text, structure, and original meaning of the Constitution. Under an originalist or textualist approach, the case against the individual mandate is easy to make, and indeed overwhelming. My point in the previous post, however, was to explain why the mandate can’t be squared even with the much weaker limits on Congressional Commerce Clause power endorsed by current Supreme Court precedent.

Finally, Orin reiterates his previous argument that the mandate can be upheld under the Necessary and Proper Clause. That, however, is a different claim from the one I was addressing, which is the argument that not having health insurance is an “activity” that Congress can regulate using its powers under the Commerce Clause alone. That’s the theory adopted by both of the two district judges who have upheld the mandate so far. But for those who may be interested, I responded to Orin’s Necessary and Proper Clause theory here and here.

UPDATE: It’s also worth noting that Orin doesn’t seem to dispute my argument that the same logic used to justify the individual mandate under the Commerce Clause would also justify federal mandates requiring people to purchase GM cars, go to the movies, or even establish and operate a blog (though perhaps that may not seem onerous to a blogger as active as Orin), indeed virtually mandate Congress might care to impose. I recognize that it’s difficult to persuade people who have already formed strong opinions on an issue as contentious as this one. But, fine points of legal doctrine aside, I suspect that the sweeping nature of this kind of power might give pause to at least some people who haven’t yet reached a firm conclusion on the question.