No Commandeering

In his thoughtful post, Orin says he would support striking down the individual insurane mandate on federalism grounds if the Supreme Court provided a “genuinely principled or workable doctrine to justify” its decision. “[I]f we imagine a hypothetical opinion invalidating the mandate that did identify such a principle, and the principle proves a lasting one, then my Burkean concerns could be addressed. . . .” Of course, he admits that his cross-cutting considerations are “competing” and therefore difficult to satisfy. Indeed, he characterizing satisfying them all as a “pipe dream.”

But I think there is an existing constitutional doctrine already limiting the commerce power of Congress that does satisfy most of Orin’s competing considerations: the doctrine established by the Court in New York v. United States (1992) in an opinion by Justice O’Connor that bars Congress from commandeering state legislatures by mandating that they enact laws.  New York has been widely accepted and applied without raising the sort insuperable line-drawing problems that concern Orin, and the underlying noncommandeering principle has been extended to bar commandeering of state executive branch officials (in Printz v. United States (1997) in an opinion by Justice Scalia) and the state judiciary (in Alden v. Maine (1999) in an opinion by Justice Kennedy). This line of cases is now 20 years old and considered well settled. Congress has been able to legislate quite extensively without running afoul of the prohibition on state mandates (though the Medicaid requirements of the Affordable Care Act are now testing the boundaries of this structural constraint). So the noncommandeering principle as applied to states seems to satisfy Orin’s Burkean concerns.

Notice that, in each of these cases, the Congress was purporting to exercise its power to regulate interstate commerce under the Commerce Clause, and the Court did not question that this was indeed the legitimate end or purpose of the challenged legislation. What was at issue was the means that Congress used to effectuate this end. In Printz, the government justified its choice of means under the Necessary and Proper Clause. Writing for the Court, Justice Scalia did not question the measure’s necessity, but concluded that the means employed was “improper.” In this respect, Justice Scalia’s decision in Printz is quite different than his concurring opinion in Raich that solely concerned the necessity of the prohibition of home-grown marijuana in states that authorized its possession and use. In Raich, no one questioned the propriety of the means that Congress had used to effectuate its commerce power. Furthermore, in none of these noncommandeering cases was this restriction on the propriety of the means chosen to effectuate the commerce power based on the protection of “liberty” in Due Process Clause of the Fifth Amendment. Instead, it was based on the “structural” principle of limited state sovereignty that the Court concluded was presupposed by the Tenth and Eleventh Amendments. While states may be regulated in how they conduct their affairs by, for example, barring them from engaging in racial or sex discrimination, and they may be barred from certain activities altogether, they may not be “mandated” to enact legislation, or enforce federal law.

Of course the obvious objection to applying the noncommandeering doctrine in the ACA challenge is not Burkean, but legal:  it is individuals and not the states who are being commandeered by the Affordable Care Act, so the existing noncommandeering doctrine does not apply. Yet the principal textual basis for the decisions in New York and Printz was the Tenth Amendment that reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The Tenth Amendment, therefore, protects popular as well as state sovereignty. Indeed, it protects them equally. (The Virginia legislature initially refused to ratify the Tenth Amendment precisely for this reason.)  Requiring citizens to “consent” to contracts is very much the same as requiring states to enact legislation. As the famed contracts scholar Lon Fuller wrote, the “power of the individual to effect changes in his legal relations with others [by entering contracts] is comparable to the power of a legislature. It is, in fact, only a kind of political prejudice which causes us to use the word ‘law’ in one case and not in the other. . . .”

The principle that the people may not be commandeered is reflected in several other constitutional provisions. The Third Amendment bars the commandeering of the people’s houses to quarter the military during peacetime. (“No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”) The Fifth Amendment bars the commandeering of private property. (“nor shall private property be taken for public use, without just compensation.”) The Fifth Amendment also stipulates that no person “shall be compelled in any criminal case to be a witness against himself.” And the Thirteenth Amendment bars the commandeering of a person’s labor by private parties or by the government itself (“Neither slavery nor involuntary servitude . . . shall exist within the United States”).

Of course like every legal principle, there are exceptions to the noncommandeering principle. Soldiers may be quartered in private homes in wartime if authorized by law. Private property may be taken “for public use” provided “just compensation” is made.  Involuntary servitude may be imposed “as a punishment for crime whereof the party shall have been duly convicted.” In addition, the people may be “commandeered” by the federal government to serve in the military, to file federal tax returns, to serve on juries in federal court, and to serve on a posse comitatus.  The first of these exceptions, however, was expressly grounded on what the Supreme Court characterized as “the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation. . . .” Likewise, the other duties can be considered duties of citizens owed to the government itself.  Moreover, none of these duties of citizenship have ever been associated with the commerce power.

While the existence of exceptions does make line drawing more difficult, this is pervasive in all of law. And the historical exceptions to the principle against commandeering the people are all specifically or narrowly defined and deeply rooted in the nation’s traditions, which is exactly the “conservative” criteria by which the Supreme Court defines exceptions to legislative powers on behalf of individual liberty under the Due Process Clause. So the relevant question is whether a duty of citizenship to buy private insurance is deeply rooted in the nation’s tradition? Or more broadly, is there “a supreme and noble duty” of American citizenship to do anything that Congress in its discretion deems it necessary to its regulation of interstate commerce?  Analyzing a claimed “duty” of citizenship the way the Supreme Court now analyzes claims of liberty would yield a ready answer.

Of course, although the noncommandeering principle is based on both the text of the Constitution (as just described), its application in this case would be “novel.” But this is due entirely to the novelty of the individual insurance mandate. Simply because the mandate is literally unprecedented, so too would be any doctrine directly addressing it, however fundamental the principle being effectuated. Printz too considered a “novel” claim of power to control state executives, requiring the identification of a new rule of law. Yet, as Justice Scalia wrote, “if . . .earlier Congresses avoided use of this highly attractive power, we would have reason to believe that the power was thought not to exist.”

Barring the government from commandeering the people by imposing economic mandates upon them would not affect any other law ever enacted by Congress because such mandates are unknown in our history. Such a ruling would not bar Congress from using its tax powers when it has the political will to do so (subject, of course, to whatever doctrines now limit that power).  Such a ruling would not bar states from exercising such a power if it was authorized by a state’s constitution (subject, of course, to other constitutional limitations on state powers). Such a ruling would only require the conclusion that, just as the Constitution did not delegate to Congress the power to commandeer state legislatures as a means of exercising its commerce power, neither did it delegate the power to commander the people as a whole to enter into contractual relations with private companies.  In short, if a majority of justices have the will to invalidate the individual insurance mandate, they surely have the way.