The Volokh Conspiracy

That’s the title of a new article by Gary Lawson and me, forthcoming in a symposium issue of Boston University’s American Journal of Law & Medicine. The Journal has a large readership among medical professionals who are interested in legal issues relating to medicine. Accordingly, if you have been following the VC’s debate on the ACA over the past couple years, most of what is in the article will already be familiar to you. Here is the abstract:

The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions of the statute are challenged. We then, using “unconstitutional” to mean” inconsistent with an original social understanding of the Constitution’s text (with a bit of a nod to judicial precedents),” show that the individual mandate in the PPACA is not authorized by the federal taxing power, the federal commerce power, or the Necessary and Proper Clause and is therefore unconstitutional.

Newt Gingrich recently claimed that Founding Fathers George Washington and Thomas Jefferson “would have rather strongly discouraged you from growing marijuana and their techniques with dealing with it would have been rather more violent than our current government.” As Jacob Sullum points out, this ignores the fact that Washington and Jefferson themselves grew hemp on their plantations, and that marijuana use was neither illegal nor socially stigmatized in the late 18th and early 19th centuries.

Perhaps more importantly, few if any of the Founders would have thought that the federal government had the constitutional authority to ban marijuana growing. As I discuss in this article, as late as the early twentieth century, advocates of Prohibition had to enact a constitutional amendment to forbid the sale of alcoholic beverages, because the dominant view at the time held that Congress did not already have the power to do this. If they are serious about enforcing constitutional limits on federal power, Gingrich and other conservatives cannot continue to ignore the ways in which the War on Drugs has severely undermined those limits, most notably in Gonzales v. Raich, the Supreme Court’s most expansive interpretation of federal authority so far.

I was going to write a more detailed post on the recent DC Circuit decision upholding the individual mandate. However, co-blogger Randy Barnett has already said much of what I would have wanted to say.

Like Randy, I am skeptical that Justices Kennedy or Scalia will be willing to endorse the D.C. Circuit’s conclusion that there are no limits to Congress’ power to impose mandates under the Commerce Clause. Both of these justices have emphasized the need to enforce limits on the scope of federal power. If the Court does uphold the individual mandate, it will be on the basis of one or more of the various arguments claiming that health care is a special case.

Here are two additional points that go a little beyond Randy’s analysis.

First, Judge Silberman’s majority opinion is wrong to suggest that a long line of Supreme Court decisions that defined the scope of Congress’ Commerce Clause power in terms of “activity” or “economic” activity “were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question” of whether economic activity could be regulated. Several of those decisions clearly use the term “activity” as part of a doctrinal test, not merely a description of facts. In Gonzales v. Raich, the Court noted that the statutes invalidated in Lopez and Morrison were ruled unconstitutional because they “did not regulate any economic activity,” whereas the law in Raich was sustained because it did regulate “quintessentially economic” activity. That certainly looks like more than just “description” to me. Even more importantly, in several cases the Supreme Court could have saved itself a lot of analytical trouble if it could uphold Commerce Clause statutes simply by claiming that they regulate inactivity with economic effects. For example, In Katzenbach v. McClung, the Court ruled that Congress could forbid racial discrimination restaurant that served almost exclusively local customers on the somewhat circuitous basis that the restaurant purchased some of its food supplies out of state, and its discrimination against African-Americans affected the volume of those purchases. If inactivity that affects interstate commerce were enough, the Court could have avoided these gymnastics and simply said that McClung’s restaurant had had an impact on interstate commerce because he could instead have established some other business that was more connected to interstate commerce than the restaurant itself was.

Second, it is interesting that Judge Harry Edwards, in his concurring opinion, seems uncomfortable with Judge Silberman’s conclusion that Congress has virtually unlimited power to impose mandates. He emphasizes that “Congress’s authority to legislate under the Commerce Clause is not without limits. If nothing else, there are boundaries that emanate from the Necessary and Proper Clause… which serve as principled limitations on Congress’s authority under the Commerce Clause.”

Edwards is right to stress the need for limits on the Commerce power. But it is somewhat strange to look to the Necessary and Proper Clause for them. After all, the whole point of the Necessary and Proper Clause is to give Congress additional power that goes beyond what it has under its other enumerated powers by themselves. Edwards claims that his view is supported by Justice Scalia’s concurring opinion in Raich. But Scalia’s key argument in that case was precisely that the Necessary and Proper Clause could be used to reach activity that Congress could not regulate under “the Commerce Clause alone.” Unlike the majority opinion, Scalia did not believe that the Commerce Clause by itself gave Congress the power to forbid the possession of medical marijuana that had never crossed state lines or been sold in any market.

UPDATE: In criticizing Judge Silberman’s interpretation of the precedents on “economic activity,” I don’t mean to suggest that those cases definitively ruled that Congress cannot use the Commerce power to regulate inactivity. They did not do that. At the same time, “activity” did define the limit of what the Court ruled that Congress could regulate in those cases. Permitting regulation of inactivity would require a lower court to go farther than the Supreme Court has gone.

UPDATE #2: I have revised this post to correct a few grammatical and phrasing errors.

I thought readers might be interested in the key passages from the DC Circuit’s majority opinion, authored by Judge Silberman, upholding the individual mandate under the Commerce Clause:

The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument. No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.

The Framers, in using the term “commerce among the states,” obviously intended to make a distinction between interstate and local commerce, but Supreme Court jurisprudence over the last century has largely eroded that distinction. See Lopez, 514 U.S. at 553-61; id. at 568-75 (Kennedy, J., concurring). Today, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible. See United States v. Morrison, 529 U.S. 598, 610, 615-19 (2000); Lopez, 514 U.S. at 558-61, 566-67. Those limitations are quite inapposite to the constitutionality of the individual mandate, which certainly is focused on economic behavior–if only decisions whether or not to purchase health care insurance or to seek medical care–that does substantially affect interstate commerce.

To be sure, a number of the Supreme Court’s Commerce Clause cases have used the word “activity” to describe behavior that was either regarded as within or without Congress’s authority. But those cases did not purport to limit Congress to reach only existing activities. They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question–presented here–of whether “inactivity” can also be regulated. See Florida, 648 F.3d at 1286. In short, we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation. . . .

Indeed, were “activities” of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such “activity.” For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession, and even if the owner never actively distributes the contraband, on the theory that possession makes active trade more likely in the future. And in our situation, as Judge Sutton has cogently demonstrated, many persons regulated by the mandate would presumably be legitimately regulated, even if activity was a precursor, once they sought medical care or health insurance. Thomas More, 651 F.3d at 560-61 (Sutton, J., concurring). The Supreme Court has repeatedly rejected these kinds of distinctions in the past–disavowing, for instance, distinctions between “indirect” and “direct” effects on interstate commerce–because they were similarly unworkable. See Wickard, 317 U.S. at 119-20; see also Lopez, 514 U.S. at 569-71 (Kennedy, J., concurring).

Appellants have sought to avoid this logic by asserting that even if one could be obliged to buy insurance when one sought medical care, one cannot be obliged to keep it. Although that argument, as we have noted, avoids the facial challenge objection, it strikes us as rather unpersuasive on the merits. Congress, which would, in our minds, clearly have the power to impose insurance purchase conditions on persons who appeared at a hospital for medical services–as rather useless as that would be–is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce.

Since appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent, they emphasize both the novelty of the mandate and the lack of a limiting principle. The novelty–assuming Wickard doesn’t encroach into that claim–is not irrelevant. The Supreme Court occasionally has treated a particular legislative device’s lack of historical pedigree as evidence that the device may exceed Congress’s constitutional bounds. But appellants’ proposed constitutional limitation is equally novel–one that only the Eleventh Circuit has recently–and only partially–endorsed. Florida, 648 F.3d at 1285-88. Moreover, the novelty cuts another way. We are obliged–and this might well be our most important consideration–to presume that acts of Congress are constitutional. Morrison, 529 U.S. at 607. Appellants have not made a clear showing to the contrary.

Appellants’ view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause.

Judge Silberman’s view is pretty much what I’ve been arguing since the mandate challenges were first filed, so it’s no surprise that I find this a persuasive reading of existing Supreme Court precedent. Of course, the Supreme Court is highly likely to review this issue soon, and the Justices are not bound by the implications of their prior precedents — or even the precedents themselves.

At Balkinization, Gerard Magliocca raises a possible slippery slope argument against striking down the individual health insurance mandate (this argument was, I think, first raised in an article by Mark Hall):

The most powerful argument against upholding the constitutionality of the individual mandate may be that this will open the door to compulsory broccoli purchases. Many people are unfamiliar with the relevant Commerce Clause cases, but everyone seems to know about the broccoli hypothetical.

The hypothetical on the other side of this litigation, though, is just as powerful. Suppose that a dangerous epidemic breaks out that reduces interstate commerce by curtailing travel and other interactions for fear of contagion. A private company develops an effective vaccine that many people refuse to buy. Is Congress prohibited from ordering everyone in the country to buy the vaccine under the proposed activity/inactivity distinction?

It so happens that I address the very issue Gerard raises in a forthcoming article on slippery slopes and the individual mandate. I have two answers to his question. First, Congress can still pass a vaccination requirement that applies to everyone who crosses state lines. Crossing state lines is clearly an “activity” and an interstate activity to boot. Second, as a practical matter, state governments would have very strong political incentives to enact vaccination laws in the face of a “dangerous epidemic.”

Gerard anticipates my second point, and finds it unsatisfying because it “sounds a lot like ‘This is a non-issue because Congress will never order you to buy broccoli.’ Either both responses are valid or neither is. One can’t be adequate and the other not.” Not so. The claim that a slippery slope is politically infeasible may be right in one scenario and wrong in the other because some policies are more politically viable than others. As I explain in this post, Congress has strong incentives to enact purchase mandates that benefit influential interest groups. The insurance mandate was itself adopted in part because of backing by the health insurance industry. By contrast, state governments are unlikely to sit on their heels in the face of a raging epidemic. Any state that does so is likely to lose business, and its politicians are likely to suffer retribution at the polls. Even the most ignorant voters tend to notice a rampaging epidemic that the government has failed to control.

Obviously, state governments could do a poor job of addressing an epidemic even in spite of good incentives. But the same is true of Congress.

UPDATE: I have made a few, mostly stylistic, changes in this post.

UPDATE #2: It’s a fair point to suggest, as some commenters do, that under my logic, Congress could enact the individual insurance mandate by restricting it to people who cross state lines. I think that would be permissible under current Commerce Clause doctrine, even if it might not be under the text and original meaning. However, many people could still evade the mandate by avoiding interstate travel. Not everyone crosses state lines regularly. Moreover, a health insurance mandate tied to travel would seem weird to many people, which in turn would reduce its political feasibility (not so with a vaccination mandate tied to travel, since it’s easy to see that part of the purpose of such a mandate is to stop the spread of an epidemic across state lines). More generally, requiring mandates to be tied to “economic activity” of some sort reduces the risk of harmful mandates because mandates with “tie-ins” tend to disincentivize whatever activity they are tied to. The more onerous the mandate, the greater the disincentive. For example, a mandate tied to employment will tend to increase unemployment. Congress will not always be willing to pay that price.

That’s the question posed today over at Scotusblog. It’s the premiere of the Scotusblog Community, which aims to encourage discussions by Scotusblog readers. To start the ball rolling, Scotusblog solicited short comments (up to 2 paragraphs) from Erwin Chemerinsky, Dawn Johnsen, Ilya Shapiro, Stephen Presser, Adam Winkler, and me, among others.

My answer to what the Supreme Court should do is:

The Court should re-affirm Gibbons v. Ogden, which followed the original understanding of the interstate commerce clause: “commerce” means mercantile exchange, plus some closely-related subjects, such as navigation. Among the subjects which are not interstate commerce, according to Gibbons, are “health laws of every description.” The Court should then over-rule South-Eastern Underwriters (1944), which broke from long-established precedent, and declared that even purely intrastate insurance was interstate commerce. Because South-Eastern claimed to be following original meaning, the modern Court should simply point out that none of the original sources cited by the South-Eastern opinion remotely support the contention that all forms of insurance are “commerce.”
 
Finally, Congress should explain that the Necessary and Proper clause underscores the unconstitutionality of the mandate. As McCulloch v. Maryland demonstrated, the original meaning of the clause affirms the Congress may exercise powers which are incidental to an enumerated power. The power to compel a private person to engage in commerce with a private company is not an incident of, or lesser than, the power to regulate voluntary interstate commerce. Further, government-created monopolies were, in the Founding Era, a paradigmatic example of improper government action. Therefore, it is not constitutionally “proper” to force citizens to spend their money on a government-favored Big Insurance oligopoly.

The rationale for the above can be found in my articles Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online (forthcoming 2011)(with Gary Lawson); “Health Laws of Every Description”: John Marshall’s Ruling on a Federal Health Care Law, 12 Engage 49 (June 2011) (with Robert G. Natelson); Commerce in the Commerce Clause: A Response to Jack Balkin, 109 Michigan Law Review First Impressions 55 (2010) (with Natelson); and Health insurance is not ‘commerce’: A single erroneous Supreme Court precedent from 1944, South-Eastern Underwriters, should be overturned, National Law Journal, March 28, 2011 (with Natelson) (available on Lexix/Nexis).

Since Scotusblog is trying to get people to comment on its own website, I’m not opening comments on this post, and I encourage you to share you thoughts over at Scotusblug.

Federal district Judge Christopher Connor of the Middle District of Pennsylvania just issued an opinion striking down Obama health care plan individual mandate. It is available here. Timothy Sandefur has some helpful commentary on the decision here. As Sandefur mentions, Connor’s opinion is unusual for striking down the mandate despite rejecting the view that upholding it would give Congress unlimited authority to enact other mandates. My own view is that upholding the mandate would indeed lead to an unconstrained slippery slope of this kind, as I explained here. On the important severability question, Connor argues that the preexisting conditions coverage requirement cannot be severed from the mandate, but that the rest of the bill can be.

We now have three district courts and one court of appeals that have voted to strike down the mandate, and three district courts and one court of appeals that have voted to uphold it. Of the twelve federal judges who have considered the question, six have gone one way and six the other, with ten of the twelve (including Judge Connor) splitting along partisan and ideological lines.

It is now more clear than ever that there is no expert consensus on this subject, and that this is not a frivolous case that only ignorant or misguided extremists could possibly support.

UPDATE: The court in question is actually the Middle District of Pennsylvania, not the Eastern District, as I originally stated in the post. I apologize for the error, which has now been corrected.

Rob Natelson explains it all in his latest blog post. Short answer: if the purpose of the tax is raising revenue (e.g., the Stamp Act), it’s a tax. If the purpose is the regulation of commerce (e.g., a prohibitive tariff on imported French clothing; a shipping tax dedicated to paying for harbor improvements), then it’s not a “tax” in the the constitutional sense. Rather, it is a regulation of commerce.

The American colonists believed that Parliament had full authority to regulate external commerce, such as by imposing protectionist tariffs. The colonists also believed that Parliament had no authority to impose domestic taxes in the colonies (such as the Stamp Act). The colonists had a very firm sense of the distinction, and ended up going to war over Parliament’s refusal to respect that distinction. Because the Obamacare mandate is designed purely to control behavior, and not to raise revenue (even if it, like a protectionist tariff on French clothing does ultimately raise a little revenue), the Obamacare mandate is a type of commerce regulation, and not a tax in the constitutional sense. That, at least, is what the original meaning tells us.

Of course whether the individual mandate actually qualifies as a regulation of “commerce…among the several States” is a separate issue. The original meaning question for the mandate’s penalty is a commerce issue, not a tax issue.

My RegBlog post on the 11th Circuit’s recent decision striking down the individual mandate is now available here. The post considers the the ruling in more detail than my previous commentary on the subject.

RegBlog is a relatively new website established by the University of Pennsylvania Program on Regulation. For VC readers who may be interested, it has lots of good commentary by scholars and public officials on a variety of regulatory issues.

Newsday has published an op ed I wrote on the 11th Circuit decision striking down the individual mandate. Because of very tight space constraints, I was unable to cover many of the nuances of the decision. But the op ed does summarize my main thoughts on it:

Last week’s Eleventh Circuit Court of Appeals decision striking down the individual mandate in President Barack Obama’s health care plan is an important milestone. The court correctly recognized that there is no way to uphold the mandate without giving Congress unlimited power to mandate anything….

The ruling was co-authored by Judge Frank Hull, who became the first Democratic judge to vote to strike down the mandate. This undercuts already dubious claims that the lawsuits are frivolous; her opinion signals that the arguments against the mandate are strong enough to persuade at least one appellate judge likely to favor it on political grounds.

Since another federal appellate court, the Sixth Circuit, recently upheld the law, it’s extremely likely that the Supreme Court will decide to hear the case within the next year….

Defenders of the mandate claim this is a special case because everyone eventually uses health care at some point. But the argument relies on shifting the focus from health insurance to health care. The same bait-and-switch tactic can justify any other mandate.

For example, not everyone eats broccoli. But everyone does participate in the market for food. Therefore, a mandate requiring everyone to purchase and eat broccoli would be permissible under the federal government’s logic, as would any other purchase requirement. As the Eleventh Circuit puts it, “the government’s position amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life.” Whatever we do, we are always implicitly making decisions not to purchase some product or other, and those choices all have economic effects.

Another interesting portion of the Eleventh Circuit’s decision striking down the individual mandate is its discussion of Wickard v. Filburn. As the court’s opinion notes, the Supreme Court (in Lopez) characterized Wickard as “perhaps the most far reaching example of Commerce Clause authority over intrastate activity.” As a consequence, the Eleventh Circuit concluded, Wickard “provides perhaps the best perspective on an economic mandate” and would need to be distinguished were the mandate to be struck down. With this in mind, below the jump are portions of the Eleventh Circuit’s discussion of Wickard.

Continue reading ‘Distinguishing Wickard’ »

SCOTUSblog has just posted my contribution to their symposium on the individual mandate litigation. I interpreted the assignment as focusing primarily on the future prospects of the individual mandate challenges, rather than on the question of whether they deserve to win. So I focused primarily on the former question, even though some other participants in the symposium seem to have concentrated more on the latter. For those interested in my take on the normative question, I summarized it here. Here’s an excerpt from the SCOTUSblog post:

The Supreme Court may hear at least one of the cases challenging the constitutionality of the Obama health care bill’s individual mandate sometime during the next year. If it does, the result will have major implications for our system of constitutional federalism. If the federal government prevails, Congress is likely to have an unlimited power to impose mandates of any kind. If the plaintiffs win, the Court will have reaffirmed the importance of constitutional limits on federal power….

Every judge who has ruled on the issue has recognized that Congress has never previously imposed a comparably sweeping mandate under the Commerce Clause, and that the Supreme Court has never ruled on the issue of whether Congress has a general power to regulate inactivity. Given the deep ideological divisions over the case and the lack of precedent clearly on point, the Court could easily rule either way.

Nonetheless, the federal government probably has a better chance than the plaintiffs. The Court’s four most liberal Justices have consistently refused to recognize any meaningful limits on Congress’s powers under the Commerce Clause. Thus, the mandate will be upheld if even one of the five conservatives votes in its favor. And the conservatives have often been a fractious bunch in federalism cases….

At the same time, it is also possible that the conservative Justices will be unwilling to uphold the mandate because doing so is likely to give Congress unconstrained authority to impose virtually any other mandate. In the recent case of Bond v. United States, Justice Anthony Kennedy – a key swing voter – emphasized that constitutional constraints on federal power protect “the liberty of the individual” as well as “state sovereignty.” If the Court gives Congress unlimited power to impose mandates, that principle will be gutted. Thus, the Justices are likely to uphold the mandate only if they can find some way to do it without giving Congress a blank check to impose future mandates at will. Unconstrained congressional authority to impose mandates also goes against the text and original meaning of the Constitution, a consideration that might sway the originalists on the Court.

SCOTUSlog has also recently published several other contributions to the Symposium, including this one by co-blogger Jonathan Adler, and this one by Cory Andrews of the Washington Legal Foundation, with whom I have worked on several amicus briefs in the individual mandate cases on behalf of WLF, a group of constitutional law scholars, and several members of Congress. Obviously, the symposium also includes various contributions by prominent defenders of the mandate, with more to come. Check it out!

I congratulate Ilya Somin on the arrival of Willow.  My daughters stand ready to babysit your beautiful pooch.

In this post, I will clarify the theory of collective action federalism by offering four points about what the theory is and is not.

First, collective action federalism is not a comprehensive structural account of American constitutional federalism.  For example, whatever the implications of the theory for the proper interpretation of other constitutional provisions, a collective action approach does not explain the proper scope of federal powers authorized by the enforcement clauses of the Civil War Amendments.  

The 13th, 14th, and 15th Amendments dramatically changed the balance of power between the federal government and the states by authorizing congressional regulation of the internal policy choices of the states on certain subjects regardless of collective action problems among the states.  These amendments especially aimed to grant basic constitutional rights previously denied to minority groups.  Minorities had been excluded because collective action had succeeded for the majority, not because it had failed. 

Second, collective action federalism offers a structural account of Article I, Section 8, not the institutional roles of Congress and the Court in constitutional interpretation.  Those who endorse vigorous judicial review of federalism questions will interpret collective action federalism in terms of how courts should restrain Congress.  Those who do not will interpret the framework in terms of guidance for conscientious legislators and the political safeguards of federalism.

Third, to the extent courts engage in judicial review of federalism questions, people will disagree about how judges should evaluate congressional judgments about the existence and seriousness of collective action problems, and about the adequacy of Congress’s response.  Congress can always seek to justify legislation by asserting that a collective action problem exists; that its effects are significant; and that the law it has enacted addresses the problem effectively.  The evaluative question, therefore, is what degree of proof courts should require of Congress before they will defer to its judgment.  

Collective action federalism does not resolve disagreements over this question.  The theory is compatible with multiple approaches, which reflect different views about (1) the proper extent of judicial deference to Congress in federalism cases, and (2) the actual scope of interstate externalities and impediments to interstate markets.

The most likely approach in practice, and one I endorse, reflects the prevailing view that Congress possesses very broad but not limitless authority to legislate under the various clauses of Section 8.  This belief is reflected in the interpretive principle of loose construction first articulated by Chief Justice Marshall in McCulloch v. Maryland and recently reaffirmed by a majority of Justices in United States v. Comstock, which I discuss below.  

This standard of review would charge courts with inquiring whether Congress, in passing the law under review, had a reasonable basis to believe that it was ameliorating a significant problem of collective action involving two or more states.  If reasonable people could disagree (1) about the existence of a collective action problem, (2) about the seriousness of the problem, and (3) about the efficacy of the congressional response, then courts should uphold the law.  

Congress would have to offer a plausible basis for its judgments that there is a serious multistate problem of collective action and that the law addresses the problem to a non-trivial extent.  Courts would defer to plausible findings by Congress.  Such an approach to judicial review would “cue” the political branches to take seriously those federalism questions that are worth taking seriously, but it would not license federal courts to engage in Lochner-style invalidations of many federal laws and overrulings of precedent.

Fourth, the theory of collective action federalism is neither originalist nor wholly consequentialist.  It is, rather, an account of an important part of the American constitutional structure.  The theory seeks to interpret Section 8 by drawing inferences from the relevant structures and relationships that the Constitution establishes — namely, the maintenance of a federal system that presupposes the continued existence of the states and that endows the federal government with authority to solve problems that the states cannot address effectively on their own.  Using modern economics, collective action federalism pursues a consequentialist inquiry to identify the logic of such problems and to explain how federalism can ameliorate them.   

Resolution VI and the recorded statements of influential Framers matter to the theory because such materials provide important evidence of the federalist structure that was planned; they offer illuminating evidence of how an important component of the constitutional machine was supposed to function in practice.  The Federalist Papers, for example, are relevant to my structural account even though they had little impact on the ratification debate.  

It might have turned out that this original plan for the proper interpretation of Section 8 ceased to make sense over time.  But that is not what happened regarding the distinction between individual and collective action by states; it continues to make good sense of this part of the American constitutional structure today, as modern economics helps to confirm.  Consequences matter to collective action federalism not because its structural account is instrumentalist all the way down, but because structural accounts are always in part consequentialist, regardless of how they are presented.

Collective action federalism leverages a particular view about the constitutional structure to support and critique contemporary judicial doctrine.  In my previous post, I read the Court’s modern Commerce Clause jurisprudence as sensibly reflecting the distinction between individual and collective action by states.  

Another recent example is the collective action reasoning present in United States v. Comstock.  The Court there held that the Necessary and Proper Clause authorizes the federal government to civilly commit sexually dangerous federal prisoners after the completion of their sentences if no state will accept custody.  

A state that agrees to assume custody must pay all the costs associated with commitment while other states potentially enjoy the benefits from committing the individual, who might otherwise move out of state upon release.  The Comstock Court underscored evidence that states often refuse to assume custody, potentially free riding on another state’s decision to do so.  Both the Court and Justices Kennedy and Alito stressed the relationship between the federal statute and an interstate collective action problem, which the federal government helped to create (by housing inmates in remote federal prisons for many years) and is better situated to address than the states. 

Collective action federalism is also relevant to part of the doctrinal debate over the constitutionality of the individual mandate in the Affordable Care Act.  In a new paper, I argue that the distinction between individual and collective action by states is a much better place to look for appropriate limits on the commerce power than is the distinction between inactivity and activity.  This is because the Commerce Clause is best understood in light of the collective action problems — including free rider problems — that the nation faced under the Articles of Confederation, when Congress lacked the power to regulate interstate commerce.  

One way a collective action problem arises is when people benefit from collective action regardless of whether they contribute to it.  To overcome failures to participate in collective action whose effects spill across state borders, the clauses of Section 8 authorize Congress to require many kinds of private action.

This authorization includes requiring (or, more precisely, incentivizing) financially able individuals to obtain health insurance coverage instead of attempting to self-insure or free riding on benevolence by shifting costs to others.  To the extent that such free riders are deemed inactive, their inactivity is a problem, not a reason why Congress is powerless to offer a solution.  Congress can offer a solution under the commerce power when the states are separately incompetent to solve the problem on their own because of spillover effects.  

Economic theory and empirical evidence suggest that the states are separately incompetent to solve the free rider problem that the individual mandate aims to address.  The free rider problem also illuminates the difficulty of arguing directly that the mandate infringes individual liberty.

I thank Eugene Volokh for inviting me to blog about my work in this highly regarded venue.  Today, I will present the theory of collective action federalism, which I have developed with Robert Cooter of Berkeley Law in a recent article.  Tomorrow, I will clarify what the theory is and is not.  Later in the week, I will offer some thoughts in response to Prof. Kurt Lash’s important new paper.

According to many respected histories, the Framers of the U.S. Constitution met in Philadelphia during the Summer of 1787 and wrote Article I, Section 8, primarily in order to address several collective action problems facing the United States during the 1780s.  They especially wanted to protect the states from commercial warfare against one another and from military warfare by foreigners.  In the Critical Period, the states often acted individually when they needed to act collectively, discriminating against interstate commerce and free riding off the contributions of other states to the federal treasury and the U.S. military.  Moreover, Congress lacked power under the Articles of Confederation to address these problems.

James Madison saw the difficulty in his Vices of the Political System of the United States. Recording various problems with the Articles, Madison underscored “want of concert in matters where common interest requires it,” a “defect . . . strongly illustrated in the state of our commercial affairs.  How much has the national dignity, interest, and revenue suffered from this cause?”  When activities spilled over from one state to another, Madison and other nationalist Framers recognized that the actions of individually rational states produced irrational results for the nation.  

This is the definition of a collective action problem.  The solution lay with the establishment of a more comprehensive unit of government.  The federal government would require the authority to tax, regulate interstate and international commerce, raise and support a military, and act directly on individuals.

The delegates at the Philadelphia Convention, in considering the scope of congressional power that would become Section 8, focused on collective action problems among the states.  The Convention instructed the midsummer Committee of Detail that Congress would have authority “to legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation.”  This language, particularly the astute reference to separate state incompetence, apprehends the need to address collective action problems facing the states.  When the Committee made its report ten days later, it had changed this language, derived from Resolution VI of the Virginia Plan, into an enumeration of powers closely resembling Section 8 in its final form.

This enumeration was uncontroversial among the delegates; the Convention accepted it without discussion.  The delegates apparently grasped the link between the general principles stated in Resolution VI and the specific powers conferred in Section 8.  As Robert Stern, Donald Regan, Akhil Amar, Jack Balkin, Andrew Koppelman, and other scholars have concluded, the Committee was embracing, not rejecting, the Resolution’s concern about interstate collective action problems when it provided an enumeration. 

Robert Cooter and I have observed that the eighteen clauses of Section 8 mostly concern collective action problems created by two kinds of spillovers: interstate externalities and national markets.  Clauses 1 and 10 through 16 give Congress the power to internalize the externalities associated with funding the national government, providing for the common defense, establishing a postal network, and securing intellectual property rights.  Clauses 3 through 6 give Congress the power to combat impediments to the successful operation of interstate markets.

The theory of collective action federalism draws from this history, from this evidence in the constitutional text, from subsequent historical understandings and mistakes, and from modern economics to provide a structural account of the American federal system established in part by Section 8.  Its various clauses form a coherent set, not a collection of unrelated powers.  Coherence comes from the connection that the specific powers have to collective action problems that the federal government can address more effectively than the states can address by acting alone.  

The states often cannot achieve an end when doing so requires multiple states to cooperate.  According to collective action federalism, the clauses of Section 8 empower Congress to solve collective action problems that predictably frustrate the states.  In the language of the Commerce Clause in particular, such problems are “among the several States.”

Conversely, governmental activities that do not pose collective action problems for the states are internal to a state or local.  They are beyond the scope of federal power.  Thus the foundation of federalism in Section 8 flows from the relative advantages of the federal government and the states.  The theory of collective action federalism reads the clauses of Section 8 as giving the federal and state governments the power to do what each does best.

The distinction between individual and collective action by states gives independent, sensible meaning to the phrase “among the several States” in the Commerce Clause.  According to collective action federalism, this phrase references a problem of collective action involving two or more states.  This is the key inquiry in determining whether “Commerce,” understood by the Court in terms of its economic/noneconomic categorization, is interstate and thus regulable under Clause 3, or is intrastate and thus beyond the scope of the commerce power.  Regardless of whether the economic/noneconomic categorization suffices as a definition of “Commerce,” a question on which collective action federalism takes no view, this categorization cannot define when such commerce is “among the several States” and when it is internal to one state.

The distinction between activities that pose collective action problems for the states and those that do not best explains why Congress may not usually use its commerce power to regulate such crimes as assault or gun possession in schools, but may regulate an interstate market for guns, wheat, or drugs.  That is, collective action federalism offers a way to distinguish the “truly national” from the “truly local” in the context of the Commerce Clause, justifying the outcomes in Wickard v. Filburn, United States v. Lopez, United States v. Morrison, and Gonzales v. Raich.

The Rehnquist Court implicitly considered collective action problems in determining the constitutionality of congressional regulation.  Chief Justice Rehnquist wrote in Lopez that the Gun-Free School Zones Act “is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” This statement suggests that the absence of regulation of guns near schools in one state would not undercut the effectiveness of regulations prohibiting them in other states.  Justice Kennedy similarly wrote that if a state or local government “determines that harsh criminal sanctions are necessary and wise to deter students from carrying guns on school premises, the reserved powers of the States are sufficient to enact those measures.”

The key question presented by these cases is whether there is a spillover of welfare that causes a collective action problem.  For example, enforcing a prohibition on guns within school zones seems the opposite of a problem requiring coordination among law enforcement in different states.  It seems local: local officials presumably have better information concerning who might carry firearms near schools and better incentives to do something about the problem.

Raich, by contrast, did involve a potential spillover problem.  Because it is impossible to distinguish marijuana used for medicinal purposes from marijuana used for other purposes, and because the market for marijuana disrespects state borders, California’s authorization of marijuana use for medicinal purposes might make it more difficult for other states to ban marijuana use.  If there is no spillover problem for state policing, states should be permitted to go their own way as far as the commerce power is concerned.  But if there is a spillover — for instance, medical marijuana use in California makes it more difficult to police drug traffickers at the Arizona border — there is a rationale for federal intervention.

Like Eugene Volokh, I too look forward to the upcoming guest-blogging stints by Kurt Lash and Neil Siegel. It so happens that I recently reviewed Robert Cooter and Neigl Siegel’s outstanding article “Collective Action Federalism” on Jotwell, a website where legal scholars review important new scholarship. Here’s an excerpt from what I said:

Robert Cooter and Neil Siegel’s Collective Action Federalism is probably the most important academic article on constitutional federalism in several years…..

In Collective Action Federalism, Cooter and Siegel argue that the congressional powers enumerated in Article I, Section 8 of the Constitution should be interpreted in light of the goal of giving Congress the authority it needs to address collective action problems among the states. A collective action problem arises when members of a group want a good, but have little or no incentive to contribute to its production, because they can instead try to free ride on the efforts of others…..

The authors argue that Article I, Section 8 should be treated as a “unified whole” rather than as a discrete set of unconnected individual powers. And they propose collective action theory as a unifying framework for interpreting that whole. Where there is an interstate collective action problem, they would give Congress the power to address it. Where no such problem exists, state power should be allowed to prevail….

The greatest strength of Cooter and Siegel’s analysis is that it accounts for the interconnections between the various congressional powers and expresses their underlying unity. As they point out, this has advantages under both originalist and nonoriginalist theories of interpretation….

Cooter and Siegel’s analysis also has a few problems. It is far from clear that Article I really gives Congress unfettered authority to solve any and all collective action problems among the states. If that were the case, why would the Founders have bothered to carefully enumerate seventeen separate powers plus the Necessary and Proper Clause, instead of a single catch-all “Collective Action Clause?” To their credit, Cooter and Siegel foresaw this issue and tried to address it by arguing that the enumerated powers are not meant to be an exhaustive list, but an illustrative one. Yet it seems unlikely that a merely illustrative list would be so long and precisely detailed. Moreover, treating the list as illustrative renders the Necessary and Proper Clause superfluous. Under that approach, Congress would already have had the power to enact any measures “necessary” to solve any collective action problem, even if they were not specifically listed.

Second, Cooter and Siegel’s framework might actually negate certain specifically enumerated powers if it turns out that they are not needed to solve any collective action problems. Consider Congress’ power to “establish post offices.” It is now clear that private firms such as Federal Express can deliver the mail just as effectively as the federal government, if not more so. And they can easily exclude would-be free riders who try to get away with not paying for postage. Does that render the US Postal Service unconstitutional?

Most importantly, Cooter and Siegel do not consider the possibility that the Constitution should be interpreted to curtail federal government policies that create “public bads,” as well as facilitate those that provide public goods. Just as Congress can solve collective action problems, it can also create them. To take one common case, it can enact special interest legislation that benefits small, well-organized groups at the expense of the general public. The repeal of such laws then becomes a nationwide collective action problem, one that the public often fails to solve because individual citizens and states have strong incentives to free ride on such matters. Curtailing such interest group legislation is one possible rationale for interpreting Congress’ enumerated powers relatively narrowly. Obviously, state governments often enact harmful special interest legislation of their own. But only Congress can impose such a law on the entire nation at one fell swoop….

Cooter and Siegel rightly argue that “[a] federal constitution ideally gives the central and state governments the power to do what each does best.” But a federal constitution must also protect against the dangers posed by both state and federal power. A powerful central government is often “best” at solving national collective action problems. But it is also often the “best” at creating them…. A more comprehensive collective action approach to constitutional federalism must consider both sides of this dilemma.

The Jurist has just published an op ed I wrote criticizing the recent Sixth Circuit decision upholding the individual mandate:

This week, the US Court of Appeals for the Sixth Circuit ruled that the individual mandate of federal health care reform is constitutional. This is undeniably a setback for mandate opponents….

Before this decision, judges in these cases had split along ideological and partisan lines…. Judge Jeffrey Sutton, however, a well-known conservative jurist, has now become the first exception to the trend….

At the same time, the opinions by Martin and Sutton highlight a central weakness of the pro-mandate position in even more blatant form than previous opinions upholding the law. Their reasoning has very radical implications, giving Congress unlimited power to impose mandates of any kind, free of any structural limits on its authority.

The Jurist has also published a piece by Charles Fried defending the decision. I criticized a previous Charles Fried column defending the mandate in this post.

In a recent post, co-blogger Orin Kerr argues that the “presumption of constitutionality” accorded to congressional legislation weighs in favor of the federal government in the individual mandate cases. In my view, courts should not grant either congressional or state legislation a presumption of constitutionality. Such deference is especially inappropriate in situations where the the legislature is passing judgment on the scope of its own authority. When a person or political institution is acting as a judge in its own case, its conclusions should not be considered presumptively valid. The presumption is also particularly improper in an era where most members of Congress of both parties routinely fail to take their constitutional responsibilities seriously and usually just rely on the courts to sort out constitutional issues, as many did at the time the individual mandate itself was enacted.

Nevertheless, Orin is right in pointing out that some Supreme Court decisions say that a presumption of constitutionality should be applied to congressional legislation. On the other hand, many Supreme Court decisions, including Morrison and Lopez, strike down federal legislation without any reference to the presumption. The presumption was also conspicuous by its absence when the Court struck down large parts of the Detainee Treatment Act in Boumediene v. Bush.

If such a presumption had been applied in those cases, the Court would probably have had to reach a different result. For example, in Lopez there was a plausible argument that a statute banning the possession of guns in a school zone was constitutional under previous precedents that the Lopez majority did not wish to overturn, because such possession has important economic effects. Justice Breyer did a good job of articulating this point in his dissenting opinion.

How can we reconcile those cases where the Court applies the presumption of constitutionality with those where it doesn’t? The cynical answer is that the Court applies the presumption in cases where it wants to uphold the challenged statute and ignores it in cases where the majority wants to strike the law down. I suspect that this factor really does account for much of the variation between cases.

Less cynically, one might argue that the justices apply the presumption in cases where they think the statute is supported by well-established precedent, but not where Congress has gone beyond the bounds of both previous decisions and the text of the Constitution itself. Applying this logic to the mandate case, I think it can be said that the presumption does not apply if you believe that the mandate is an unprecedented expansion of federal power that goes beyond previous precedent and is not supported by the text of the Constitution. Alternatively, if you think that the mandate is fairly similar to previous statutes that have been upheld by the Court or that it is authorized by the text of the Constitution, the presumption would apply.

The key question to ask is whether this case is more like Lopez, Morrison, and Boumediene, or whether it is more similar to those cases where the Court has applied the presumption, such as Watson v. United States v. Watson, a case cited by Orin. For what it’s worth, I think Watson is a clear example of a case where the majority thought that the challenged statute was constitutional on the merits, with or without a presumption of constitutionality. The Court emphasized that it was supported by common law principles and by many decades of precedent.

This, of course, suggests that the presumption applies only to those statutes that the courts are likely to uphold anyway. However, such an approach is consistent with the way the Court has applied the presumption over the last several decades. It’s hard to point to any cases where the Court has used the presumption to uphold a congressional statute that it was otherwise inclined to strike down. As currently used by the Court, the presumption of constitutionality is mostly a way to seal the deal on a case the government was likely to win anyway. It turns a strong case into a slam dunk. But it can’t be used to transform a probable loss for the federal government into a win.

Obviously, it is still possible to argue that the mandate should be upheld even without applying the presumption. The point of this post is simply that the presumption adds little or nothing to the federal government’s case.

UPDATE: It turns out that the Supreme Court did briefly mention the presumption at the start of its opinion in Morrison v. United States [HT: Hans Bader]. I apologize for the error. At the same time, the presumption seems to play little if any role in the Court’s analysis of the decision. It is not mentioned at all after this one line near the beginning: “Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds….. With this presumption of constitutionality in mind, we turn to the question whether §13981 falls within Congress’ power under Article I, §8, of the Constitution.”

Ilya’s post below addresses an important issue in commerce clause litigation: Whether commerce clause challenges should be treated as facial or as-applied challenges and, if the former, how such challenges should be addressed.  I largely agree with Ilya’s post. Indeed, if anything, Ilya understates the point, particularly with regard to United States v. Lopez. Further, whatever the other merits of Judge Sutton’s opinion — which is quite strong, even if I disagree with its conclusion — it mishandles this issue.

In his post below, Ilya writes:

By Judge Sutton’s reasoning, the Supreme Court should have rejected the facial challenges brought inUnited States v. Lopez and United States v. Morrison. In Lopez, the Court struck down a federal law banning possession of guns in a school zone as going beyond Congress’ authority under the Commerce Clause. But surely some of the people whom that law could have been applied to were using guns that were purchased in interstate commerce or had brought the guns into a school zone in order to facilitate an interstate economic transaction (e.g. — bringing in a gun in order to protect their sale of illegal drugs imported from abroad).

This is not merely a hypothetical. It is, in fact, what happened in Lopez. Alfonso Lopez was not just some kid who happened to bring a gun to school.  Rather, as the Fifth Circuit’s opinion explains, he was a courier who had been paid to deliver the gun to a gang member.  He was a delivery boy engaged in a commercial transaction.   As a consequence, his possession was within the scope of the  Commerce Clause power.  Had Congress passed legislation prohibiting this sort of economic transaction, his Commerce Clause argument would have failed.  The reason his Commerce Clause challenge prevailed was not because his conduct was beyond the scope of the Commerce Power. Rather, it prevailed because the statute at issue (the Gun-Free School Zones Act) was not itself a proper exercise of that power.  What the statute prohibited — possession, as such, in a school zone — was beyond the scope of the power, even though the statute reached conduct that could be reached constitutionally.

What the Court’s handling of Lopez reveals is that the key question in a Commerce Clause challenge is the nature of the exercise of federal power, not whether, in a given case, the plaintiff’s conduct could be regulated or prohibited constitutionally.  This is why the GFSZA was invalidated when challenged by someone who was engaged in reachable conduct.  It is also why the Lopez Court noted the lack of a jurisdictional element (e.g., a provision limiting the prohibition to gun possession “substantially related” to interstate commerce).  The purpose of a jurisdictional element is to preserve a statute’s constitutionally by confining its exercise to those activities within the scope of the Commerce Clause power. (See, e.g., the Supreme Court’s unanimous opinion United States v. Jones.)  Thus, a statute prohibiting the commercial possession of guns in or near a school is constitutional, but a statute imposing a blanket prohibition on gun possession in or near a school is not.  In the former instance Congress is engaged in a constitutional exercise of its power, in the latter it is not, even though the statutes overlap.  Yet under Judge Sutton’s approach, the GFSZA should have been upheld because it would be constitutional to prohibit participation in commercial gun transactions like the one in which Lopez was engaged.

The traditional test for a facial challenge is whether there is any set of circumstances in which the statute’s application would be constitutional.  As Lopez shows, the proper way to apply this test is not to ask whether the statute reaches otherwise reachable conduct — commercial gun possession, the purchase of insurance, etc.  Rather, the question is whether the class of activities expressly subject to regulation — that is, the conduct which brings an individual within the scope of the statute at issue — is itself within the scope of the Commerce power.  As the Supreme Court has reiterated time and again (albeit mostly in cases upholding statutes against Commerce Clause challenge), what matters is what Congress did, not the specific conduct of the individual challenging the statute’s constitutionality.  This is why Lopez prevailed.  Incidentally, it is also why Angel Raich lost.  For in Gonzales v. Raich there was no question that Congress could regulate interstate commerce in drugs.  Once the Court concluded that the class of activities subject to the statute — the sale, production, distribution and possession of a controlled substance — was within the scope of the Commerce power [supplemented by the Necessary & Proper clause], Raich had to lose.  Indeed, there is no Commerce Clause precedent in which the Supreme Court has upheld the broader statute but invalidated its application to a specific individual.  If the relevant statutory provision is a permissible exercise of the Commerce power, the challenge fails.

The above illustrates why the key issue is defining the class of activities subject to federal control.  Listen to the oral arguments in the various Circuit Courts and notice how acting-Solicitor General Neil Katyal takes pains to define the class of activities subject to regulation in economic terms — as “financial decisions about how and when health care is paid for”.   Judge Martin’s decision does much the same, characterizing the class of activities as “the practice of self-insuring for the cost f health care delivery.”  The problem, in my view, is that these characterizations are not consistent with the statutory provision, as neither accurately characterizes the class as a whole Congress has sought to regulate.

It may be the case that most of those subject to the individual mandate are making “financial decisions” about how and when to pay for their health care or are engaged  in self-insurance, but the statute does not limit its application to such people, nor can all those subject to the mandate be characterized in such terms.  Not only are there those who would otherwise never purchase health insurance.  There are also those who, for whatever reason religious or otherwise, will never purchase health care. [See, e.g., Mead v. Holder at p. 6.]  (Indeed, under Cruzan, they have a fundamental right to refuse even potentially life-saving care.)   That Congress can reach most of those without insurance through other means is immaterial, just as it was immaterial that Congress could have prohibited what Alfonso Lopez actually did had it only passed a different statute.  What matters is the statute that Congress actually passed, and whether the class of activities over which Congress asserted its authority is, as a class, subject to federal jurisdiction.

So, contrary to Katyal’s protestations at the various oral arguments and the opinions of Judges Martin and Sutton, the class of activities at issue is the mere presence in the country without qualifying health insurance, and the question really is whether Congress may mandate the purchase of a given good or service.  In other words, the question is whether such a mandate itself is facially constitutional as an exercise of federal power, not whether we can identify a range of situations in which such a mandate could be constitutionally applied. [As-applied challenges should be reserved to claims that the mandate violates some other constitutional provision, such as the First or Fifth Amendment, in its application to specific individuals, e.g. someone with religious objections to medical care.]

[For those interested in more this question, I recommend the work of a former student: Nathaniel Stewart, Turning The Commerce Clause Challenge "On Its Face": Why Federal Commerce Clause Statutes Demand Facial Challenges, 55 Case Western Reserve Law Review 161 (2004).]

POST-SCRIPT: Just in case it was not clear, the argument above is not sufficient to establish the unconstitutionality of the individual mandate. The point is rather to identify some of the problems with the way some of defended its constitutionality. Although I believe the mandate should be held unconstitutional, I have long conceded that this is a difficult case, particularly in light of Gonzales v. Raich, and one that implicates first principles about the nature of federal power and the Constitution.

SECOND POST-SCRIPT: I should also have noted that what this argument does is shift the focus from the Commerce Clause to the Necessary & Proper Clause. If a class of activities extends beyond the scope of the Commerce Clause itself (as I believe the class subject to the mandate does), the question becomes whether the broader class can be justified as Necessary & Proper to the overall scheme. Under Gonzales v. Raich, there is a strong argument in defense of the mandate on these grounds. Short of overturning Raich (which I would love to see the Court do), the strongest counter-arguments are that mandating the purchase of a good or service is not “proper” to the execution of an enumerated power and that the argument for the mandate rests on an effectively unlimited conception of federal power that contravenes one of the motivating principles of Lopez and Morrison.

THIRD POST-SCRIPT: Some of the commenters below suggest my view requires a somewhat-radical “all-or-nothing” approach to Commerce Clause challenges. Yes and no. It is perhaps radical and “all-or-nothing” in that I believe that a given prohibition is either within the scope of enumerated powers or it is not. But what is “all-or-nothing” is a given statutory provision, not a statute in its entirety. This remains strong medicine, but makes my position slightly less radical in its implications. What would this have meant for Gonzales v. Raich? This is a good question, and one I engaged in this article (see pages 770-776). My first preference would have been for the Court to invalidate the prohibition on possession, thereby requiring Congress to add a jurisdictional element. Two alternatives that are less doctrinally satisfying, but perhaps easier to swallow, would have been either to hold that the CSA did not reach non-commercial possession (effectively reading a jurisdictional requirement into the statute), or to have recognized a separate class of activities authorized by state law that could be analyzed independently. Either of these alternatives would have required a bit of work (particularly the latter), as there’s little basis for either in the relevant case law.

NOTE: I’ve cleaned up the original post in a few places to make it a bit more clear.

In his concurring opinion upholding the constitutionality of the Obamacare individual mandate, Sixth Circuit Judge Jeffrey Sutton argues that the plaintiffs’ case must fail as a “facial” challenge to the law because there are some applications of the mandate that are clearly constitutional. On the other hand, he leaves the door open for future “as-applied” challenges, which contend merely that the law is unconstitutional in certain specific cases:

For now, whatever else may be said about plaintiffs’ activity/inactivity theory of commerce power, they have not shown that the individual mandate exceeds that power in all of its applications. Congress may apply the mandate in at least four settings: (1) to individuals who already have purchased insurance voluntarily and who want to maintain coverage, but who will be required to obtain more insurance in order to comply with the minimum-essential-coverage requirement; (2) to individuals who voluntarily obtained coverage but do not wish to be forced (at some indeterminate point in the future) to maintain it; (3) to individuals who live in States that already require them to obtain insurance and who may have to obtain more coverage to comply with the mandate or abide by other requirements of the Affordable Care Act; and (4) to individuals under 30, no matter where they live and no matter whether they have purchased health care before,who may satisfy the law by obtaining only catastrophic-care coverage. The valid application of the law to these groups of people suffices to uphold the law against this facial challenge.

While future challenges to the law have hills to climb, nothing about this view of the case precludes individuals from bringing as-applied challenges to the mandate as the relevant agencies implement it…..

Sutton appears to be arguing that the plaintiffs’ claim that the mandate is an unconstitutional regulation of inactivity does not apply to the first three of the above situations because people who fall into these categories have already engaged in activity in the health insurance market. Therefore, the mandate could be imposed on them even under the plaintiffs’ reasoning.

Sutton’s analysis rests on a misinterpretation of the plaintiffs’ argument. The key point is not that a given plaintiff hasn’t engaged in economic activity, but that the regulation imposed by Congress does not require any such activity as a prerequisite for covering them. The fact that some of the individuals covered by the mandate could be regulated by a more narrowly drawn law (e.g. – one that covered only people who had already purchased health insurance) does not mean that the present mandate is constitutional as applied to them. Their having previously engaged in economic activity that Congress could regulate is purely coincidental. It is not the reason why the mandate applies to them, under the terms of the law itself.

By Judge Sutton’s reasoning, the Supreme Court should have rejected the facial challenges brought in United States v. Lopez and United States v. Morrison. In Lopez, the Court struck down a federal law banning possession of guns in a school zone as going beyond Congress’ authority under the Commerce Clause. But surely some of the people whom that law could have been applied to were using guns that were purchased in interstate commerce or had brought the guns into a school zone in order to facilitate an interstate economic transaction (e.g. – bringing in a gun in order to protect their sale of illegal drugs imported from abroad). In Morrison, the Court invalidated a federal law creating a civil penalty for gender-motivated crimes of violence. But some of the people covered by the law might have committed their crimes on interstate trains or buses or committed them for the purpose of interfering with women engaged in interstate economic transactions. By Judge Sutton’s reasoning, Lopez and Morrison struck down laws that did not ” exceed” Congress’ power “in all of [their] applications.”

The Court ruled the way it did in Morrison and Lopez because the challenged laws, as actually written, did not require any kind of connection to interstate commerce as a legal prerequisite for their application. The fact that some potential defendants happened to have such a connection was legally irrelevant. The same reasoning applies to the individual mandate. Judge Sutton’s approach, by contrast, would rule out virtually all facial challenges to any law, so long as there is even one conceivable situation where the law leads to a prosecution that could have been constitutional with a more narrowly drawn statute.

UPDATE: To illustrate my point a bit further, consider a hypothetical statute giving police the power to break into any house any time they want. In my view, that statute would be facially invalid. By contrast, Judge Sutton would have to uphold it against a facial challenge because some of the searches allowed by the statute would involve cases where the search was “reasonable” under the Fourth Amendment (e.g. because the authorities had probable cause to believe that a crime had recently been committed on the premises).

UPDATE #2: It is not entirely clear why Judge Sutton thinks that the plaintiffs’ argument does not apply to his fourth category, people under the age of 30 who are only required to purchase “catastrophic” health insurance coverage under the law. Not having catastrophic coverage is no more “economic activity” than is not having a broader insurance policy. If the plaintiffs’ theory applies to the latter case, it applies to the former as well. Judge Sutton seems to think that the two are different because congressional legislation requires some providers to provide emergency health care treatment for free. But it is not clear why this distinction should have any constitutional significance. If Congress required some supermarkets to provide free broccoli, would that justify a broccoli purchase mandate?

UPDATE #3: Co-blogger Jonathan Adler makes some related points here. As Jonathan notes, Alfonso Lopez, the defendant in United States v. Lopez was in fact engaged in an economic transaction (he was paid to deliver the gun in question to a gang member).

Today’s 2-1 Sixth Circuit Court of Appeals decision upholding the constitutionality of the individual mandate is undeniably a setback for mandate opponents. Up until now, judges’ votes in the mandate cases had split along ideological and partisan lines. Every conservative Republican judge had voted to strike it down, while every liberal Democrat voted to uphold it. Even in the Sixth Circuit, two of the three judges fit the same pattern (Judge Boyce Martin, and Judge Graham in dissent). But Judge Jeffrey Sutton, a well-known conservative judge has now become the first exception to it. Like Martin, he voted to uphold the mandate as an exercise of Congress’ powers under the Commerce Clause.

At the same time, Martin and Sutton’s opinions highlight a central weakness of the pro-mandate position in even more blatant form than previous opinions upholding the mandate. Their reasoning has extremely radical implications. Unlike previous decisions upholding the mandate, which ruled that failing to purchase health insurance is “economic activity,” Martin and Sutton conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of “substantial” economic effect.

The Martin-Sutton approach thereby opens the floodgates to an unlimited congressional power to impose mandates of any kind. Any failure to purchase a product has some substantial economic effect, at least when aggregated with similar failures by other people. This is certainly true of failures to purchase broccoli, failures to purchase cars, failure to by a movie ticket, and so on. Even failure to engage in noncommercial activity nearly always has such effects. For example, a mandate requiring people to eat healthy food and exercise every day can be justified on the grounds that it would increase economic productivity and also increase the demand for healthy food products and gym memberships. The district court rulings in favor of the mandate all embraced some version of the “health care is special” argument [or at least the argument that not purchasing health insurance is "economic activity"] in order to avoid this slippery slope problem (albeit, unsuccessfully, in my view). By contrast, Martin and Sutton take us all the way to the bottom of the hill in one fell swoop.

Obviously, Congress will not enact every conceivable harmful mandate that the Martin-Sutton reasoning would authorize. But the risk of abuse is far from purely theoretical, since many interest groups can and will lobby for laws that compel people to purchase their products.

The sweeping congressional power authorized by Martin and Sutton’s opinions makes a hash of the text of the Constitution, which gives Congress the power to regulate interstate and foreign commerce, not a blanket power to mandate anything that has a “substantial” economic effect. It also makes most of the rest of Congress’ Article I powers superfluous. For example, there would be no need for a separate power to tax. After all, failure to give the government some of your money voluntarily surely has substantial economic effects. Therefore, virtually any tax could be imposed through the Commerce Clause, without the need for a separate Tax Clause. Similarly, failure to serve in the armed forces surely has substantial economic effects. The Commerce Clause therefore authorizes Congress to impose a draft and purchase military equipment, thereby making the power to raise armies superfluous.

The Sixth Circuit ruling would be defensible if it were compelled by Supreme Court precedent. However, both Martin and Sutton admit that the Supreme Court has never previously ruled on a case involving a mandate of this type, and has also never previously addressed the issue of whether the Commerce Clause authorizes regulation of inactivity. Therefore, it’s hard to defend their reasoning on the grounds that it was somehow compelled by precedent.

Martin and Sutton also both make the argument that a health insurance mandate is special case because everyone will use health care at some point in their lives. This part of their reasoning adds little to previous statements of the same argument, which I criticized here. It also does not vitiate the radical implications of their rejection of the activity-inactivity distinction, since neither actually concludes that Congress’ power to enact the mandate depends on health care’s supposedly special nature.

Much of Judge Sutton’s Commerce Clause argument relies heavily on the notion that the plaintiffs’ case must fail as a “facial” challenge to the mandate because some possible applications of the law are constitutional even under his interpretation of the plaintiff’s own theory of the case. He leaves the door open to “as-applied” challenges, suggesting that the mandate may still be unconstitutional as applied to people who have not previously purchased health insurance. I may take up this aspect of Sutton’s argument in a follow-up post.

Finally, it’s worth noting that Sutton and Judge Graham both reject the government’s claim that the mandate is a valid exercise of Congress’ power to tax, instead concluding that it is a penalty. Judge Martin avoids addressing this issue directly, but does hold that the mandate is a penalty in the section of his opinion discussing standing. So far, the tax argument has been rejected by every judge who has ruled on it, including those who have upheld the law on other grounds.

Democratic Representative Barney Frank and Republican Ron Paul recently introduced a bill that would repeal the federal law banning marijuana:

The legislation would eliminate marijuana-specific penalties under federal law, but would maintain a ban on transporting marijuana across state lines. It would allow individuals to grow and sell marijuana in states that make it legal.

The bill has no chance of passing the Republican-controlled House.

The bill was introduced by Democrat Barney Frank of Massachusetts and Ron Paul, a Texas Republican running for his party’s presidential nomination.

Four Democrats are co-sponsors: John Conyers of Michigan, Barbara Lee of California, Jared Polis of Colorado and Steve Cohen of Tennessee.

As the Washington Post notes in the article quoted above, the bill has no chance of actually passing. Nevertheless, it is a step forward for legalization advocates. It’s the first time such a bill has been introduced in Congress. It is also significant that the sponsors include big-name Democratic politicians like Frank, Conyers, and Lee. They are fairly prominent, mainstream Democratic pols. Ron Paul, unfortunately, is far more isolated within his own party. In recent years, public opinion has become much more favorable towards marijuana legalization, with 46 percent of the public now supporting it. This bill is another sign that legalization is becoming less marginal and more of a mainstream cause.

On the other hand, it is unfortunate that this essentially federalist bill hasn’t attracted any support from conservatives, especially the Tea party faction. After all, the bill does not require nationwide legalization, but merely leaves it up to each state to decide for itself. One of the main themes of the Tea Party is their insistence that the federal government has exceeded its constitutional bounds. The War on Drugs is a particularly extreme example of such federal overreach. Indeed, the federal ban on marijuana is responsible for Gonzales v. Raich, the Supreme Court’s broadest and most questionable interpretation of federal power so far (which I criticized in this article). Raich held that Congress’ power to regulate interstate commerce was broad enough to justify a ban on the possession of medical marijuana that had never been sold in any market or ever crossed state lines.

Every lower court decision upholding the constitutionality of the Obamacare individual mandate has relied heavily on Raich. In my view, the mandate goes even further than Raich did. But there’s no doubt that Raich makes life more difficult for mandate opponents. A political movement that is serious about constraining federal power cannot, consistent with its principles, support the present sweeping federal War on Drugs.

House Budget Committee Chairman Rep. Lamar Smith seemed to cite Raich in his confused justification for refusing to let his committee consider the proposed legalization bill. He claims that “[a]llowing states to determine their own marijuana policy flies in the face of Supreme Court precedent.” In reality, Raich merely permits a federal ban on marijuana, but does not require it. More importantly, neither the real Raich nor Smith’s dubious interpretation can be squared with the sorts of strict constitutional limits on federal power that Tea Party conservatives advocate.

UPDATE: It turns out that liberal Republican Senator Jacob Javits and Democrat Ed Koch (later to become Mayor of New York) introduced a bill to decriminalize marijuana back in 1977. Other decriminalization proposals have been introduced in the past as well, including by Frank and Paul in 2009. The current proposal goes beyond decriminalization and includes actual legalization. Decriminalization still leaves in place civil penalties for possession and, in some proposals, criminal punishment for sale. By contrast, legalization would eliminate both.

That’s the argument of an Independence Institute amicus brief submitted to the 11th Circuit in Florida v. Department of Health and Human Services. Here’s the summary of argument:

The Necessary and Proper Clause was one of a large family of similar clauses commonly appearing in eighteenth-century legal instruments delegating authority from one party to another. Those clauses followed several possible formulae. The Necessary and Proper Clause is a specimen of the most restrictive of those formulae: It does not actually grant additional authority beyond that conveyed by other enumerated powers. Rather, it is a recital, designed to inform the reader of two legal default rules: 

First, that express grants of enumerated powers, stated elsewhere, carry with them subsidiary incidental powers (“necessary”). 

Second, that congressional enactments must comply with standards of fiduciary obligation and administrative reasonableness (“proper”).

This understanding of the Clause appears in the legal practices and leading cases at the time the Constitution was adopted, and also in the history of the Clause itself—the records of its drafting, in the ratification debates, in the Supreme Court’s great case on the subject, M’Culloch v. Maryland, 17 U.S. 316 (1819), and in Chief Justice John Marshall’s public explanations of M’Culloch.

Once the meaning of the Clause is understood, the implications for the individual mandate are clear:

The mandate is not “necessary” because power to impose it is not a subsidiary “incident” to Congress’s Commerce Power. The power to compel the purchase of a product is as great or greater than the power to regulate voluntary commerce; therefore the mandate cannot be an incidental power regardless of how helpful it might be. For Congress to possess authority of that kind, it would have to be separately enumerated in the Constitution.

The mandate is not “proper” because it violates the fiduciary obligations of impartiality embedded in the word “proper.” During the debates over ratification, participants recognized that a law chartering a commercial monopoly would be “improper.” A fortiori, compelled purchase from favored oligopolists is improper.

Thus, to the extent that the constitutionality of the individual mandate depends upon the Necessary and Proper Clause, the mandate is unconstitutional.

Besides the Independence Institute, the amici on the brief are Prof. Gary Lawson (BU), Prof. Robert G. Natelson (retired from U. Montana Law; currently a Senior Fellow at the Independence Institute); and Prof. Guy I. Seidman (Interdisciplinary Center Herzliya, Israel). The three professors are among the co-authors of The Origins of the Necessary and Proper Clause (Cambridge, 2010).

The Jurist has posted my article on “Why the Individual Health Care Mandate is Unconstitutional.” The format allowed me to lay out the case against all three of the federal government’s rationales for the law more fully than in any previous popular press publication. Here’s an excerpt:

Twenty-eight states and several private groups have now filed lawsuits challenging the constitutionality of the of the Obama health care plan. One of the cases was filed by twenty-six state governments and the National Federation of Independent Business in a federal court in Florida. Another was initiated by the Commonwealth of Virginia in a federal court in that state. Numerous other suits have been filed by a variety of private groups.

When the first of these suits began a year ago, many denounced them as frivolous political grandstanding. But it is increasingly clear that the plaintiffs have a real chance of winning. More importantly, they deserve to win because the mandate really is unconstitutional. If upheld, it would give Congress a dangerous power that greatly exceeds the bounds of the Constitution.

The cases focus primarily on challenges to the new law’s “individual mandate,” which requires most American citizens to purchase a government-approved health insurance plan by 2014 or pay a fine….

The federal government claims that Congress has the power to impose the mandate under the Commerce Clause, the Necessary and Proper Clause, and the Tax Clause of the Constitution. All three arguments have a common defect: if accepted by the courts, they would give Congress the power to enact virtually any mandate of any kind. Such a ruling would be unprecedented and would make a hash of the Constitution’s carefully defined limits on federal power.

Ilya Shapiro is senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. On Monday, I interviewed him for 39 minutes about Cato’s litigation program on constitutional issues, his traveling the country during the last year to debate the health control law, and the constitutional issues involved in the challenge to that law. The MP3 podcast is available here.

From 1789 until 1944, the Supreme Court adhered to the original understanding of the Constitution that insurance is not “commerce” that is subject to the congressional power to regulate interstate commerce. A 1944 opinion by Justice Black, Southeastern Underwriters, reversed that approach, while claiming to base its opinion on original understanding. In an article in the National Law Journal, Rob Natelson and I argue that the Southeastern Underwriters should be over-ruled.