In his most recent post in our exchange about the individual mandate and the Commerce Clause, Orin distinguishes between a conception under which Congress’ commerce power is “not unlimited” and one where it is “significantly limited.” He argues that the Court’s jurisprudence endorses the former, but not the latter.
In my view, however, concluding that the individual mandate is authorized by the Commerce Clause because it regulates a decision that has some economic impact is essentially equivalent to concluding that Congress’ power is unlimited. Virtually any decision to do or not do anything has economic effects, if only because it necessarily implies a decision not to devote the same time and effort to participation in some market. I outlined this logic more fully in my original post, and Orin has yet to challenge it.
It is, of course, true that modern Commerce Clause jurisprudence has given Congress extremely broad authority, in my view mistakenly. That, however, does not mean that there are no limits that are “significant.” If the Court merely wanted to insist on utterly insignificant limits, why did it put so much effort into cases like Morrison and Lopez, and why have the conservative justices, including key swing voter Justice Kennedy, repeatedly emphasized the importance of those limits? To be sure, those limits are still “insignificant” with respect to the vast majority of possible regulations that Congress might want to enact. With the individual mandate, however, Congress has managed to blunder into one of the few remaining areas where doctrinal limits on the Commerce power still have some bite. It did so by targeting something that can’t be defined as regulable “activity” without collapsing the remaining limits on the scope of that concept.
Even more to the point, both the Court majority and Justice Kennedy have specifically rejected the claim that Congress can regulate something merely because doing so has some economic effect, which is the central premise of the argument I have been criticizing. After all, carrying a gun in a school zone affects various markets in a variety of ways pointed out by Justice Breyer in his Lopez dissent. The majority justices did not deny that those effects exist, but nonetheless concluded that the Gun Free School Zones Act was unconstitutional. As Kennedy put it in his Lopez concurrence, “any conduct in this interdependent world of ours has an ultimate commercial origin or consequence,” which is why the mere presence of economic motives or effects is not enough to justify congressional regulation under the Commerce Clause. If it were, then Congress’ commerce power would indeed be unlimited.