There has to be some natural limit on how much commentary readers can bear on the individual mandate, but I wanted to respond to one argument that seems to be at the core of the arguments in the mandate debate. As the recent Eleventh Circuit decision and the recent SCOTUSblog symposium make clear, much of the constitutional argument against the individual mandate rests on the unlimited power argument: The mandate must be unconstitutional because upholding the mandate requires concluding that the federal government has unlimited power. If the mandate is within Congress’s power, the thinking goes, then anything is within Congress’s power; The federal government would have a general police power, which cannot be right.
I’m deeply sympathetic to the argument that current Commerce Clause doctrine gives the government too much power. At the same time, I think it’s worth noting that arguments in support of the mandate do reflect a limitation on the scope of federal power: the line between regulating markets in goods and services and regulating outside of markets in goods and services. The basic idea is that Congress has Article I power to regulate markets in goods and services, as markets in goods and services are commerce. In contrast, Congress does not have have a general Article I power to regulate on subjects outside of markets in goods and services, as that is not part of commerce.
Just to be clear, it’s not the line I would propose if I could rethink Commerce Clause jurisprudence from first principles. But it does appear to be the line that current Supreme Court cases draw. Thus, inLopez, the federal government couldn’t ban possession of a gun in a school zone with no proven link to interstate commerce because it’s extremely tenuous to argue that possessing a gun in a school zone is part of a market in goods and service. As the Lopez Court put it: “Section 922(q) is a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Thus, it couldn’t be regulated. In contrast, in Raich, the federal government could regulate even intrastate possession of marijuana, as it is part of an effort to regulate a market in illegal goods and services for marijuana. The Raich court explained:
Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. “Economics” refers to “the production, distribution, and consumption of commodities.” Webster’s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product”).
Of course, I realize that there’s a debate on how to apply that economic vs. non-economic test (or perhaps more accurately, the market vs. non-market test). Mandate supporters generally look at the law from the perspective of Congress. They reason that Congress was trying to regulate a large chunk of the United States economy, and that obviously relates to markets. In contrast, mandate opponents generally look at the law from the perspective of someone who does not participate in the market for health care. They reason that this application of the law doesn’t regulate markets, as that person regulated was outside the market to begin with. But regardless of which application of the test is correct, the test itself does impose a limitation on the scope of federal power.
To be clear, I’m not saying that I personally like the current state of the law. I’m a federalism guy. I personally think the economic/non-economic line isn’t enough of a limitation on federal power. Lots of things relate to markets in some way, and when you can “aggregate” economic impact, that gives Congress an enormous amount of power. The Commerce Clause is not just about commerce, it’s about interstate commerce. So I would be pleased if the Supreme Court ends up taking a more restrictive view of federal power than existing caselaw reflects. But while the economic/non-economic line may not be enough of a limitation to me, I don’t think it’s accurate to say that it makes the federal government one of unlimited power.