One aspect of the ACA litigation that has not received due attention is the effect of the Court’s ruling on the scope Foreign Commerce Clause. An expansive, limitless definition of the scope of “Commerce” would presumably apply to Foreign Commerce as well. If there is no limiting principle for the former, it would be hard to have a limiting principle for the latter.
Under the logic of the government’s approach, Congress could regulate or mandate transactions purely between foreigners with no direct U.S. nexus. This is because these foreigners could have – should have! – engaged in transactions with the U.S instead. Purely foreign transactions affect the price of things in the U.S. If insurance would be cheaper if more people bought it, the same could be said about American cars. It makes no difference if the recalcitrant non-purchaser is foreign or domestic. Can the Japanese be required to buy U.S. cars? Certainly such a law would be closely related a major economic sector, as defenders of the ACA like to put it. (I am of course holding aside issues of enforceability to focus on the Commerce power.)
Or consider a rationale closer to the ACA case. If the mandate falls within Interstate Commerce, why not Foreign Commerce as well? Just as health people may get sick while uninsured, foreigners might come to the U.S. uninsured. At the time they come, no doubt Congress could require purchasing insurance as part of its Immigration powers. But by then it could be too late, they could be sick not insurable. So could Congress require foreigners to buy insurance or broccoli prior to coming to America on the theory that they might at some point come to America? Foreigners from countries where a sizable percentage visit the U.S.? Foreigners who have visited the U.S. in the past?
It is ironic that the liberal interpretation of the Commerce power would allow American exceptionalism and give Congress regulatory powers in excess of what would be allowed by international law. On the other hand, it is hard to doctrinally cabin disrespect for the domestic division of sovereignty from disrespect for the international division of sovereignty.
In Kiobel, the ATS case I have been blogging about, the Supreme Court has shown some skepticism about broad extraterritorial assertions of U.S. law (based proximately on statutory, not constitutional concerns, though in my forthcoming paper, I argue the Offenses Clause of the constitution and foreign commerce clause underpins the statutory issue. The justices might want to consider that a ruling for the government in the ACA case would open a whole world of extraterritorial legislation.
In Schecter Poultry, Justice Cardozo famously wrote:
Here is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center.
The point here is the “periphery” is not just internal; the periphery is also the world. That which obliterates the distinction between the local and national also tends to obliterate the distinction between global and national.