The Volokh Conspiracy

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.

The recent District of Columbia federal trial court decision upholding the individual mandate breaks little new ground and has many of the same weaknesses as the two previous district court decisions that went the same way. Judge Gladys Kessler ruled that the mandate is a legitimate exercise of Congress’ power under the Commerce Clause because choosing not to purchase health insurance is an “economic activity”:

It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to
ignore reality.

This argument suffers from the same flaws as the very similar “economic decision” doctrine adopted in the two previous rulings. It would give Congress the power to impose any mandate of any kind. For example, choosing not to buy and eat broccoli surely qualifies as an economic decision under this approach. So too with choosing not to buy a car. And so on. Even choosing to sleep for an hour qualifies, since one could have used the same time to do work or go out and buy a product of some kind. Nothing in Supreme Court precedent gives Congress such unlimited power (a point Kessler seems to accept), and allowing it certainly makes a hash of the text of the Commerce Clause, which merely gives Congress the power to regulate “Commerce . . . among the several States.”

Judge Kessler also relies on what I have previously called the “health care is special” argument: that choosing not to purchase health insurance is an economic activity because we will all use health care at some point in our lives. This argument, however, also leads to unlimited congressional power, for reasons I have explained here:

This, however, doesn’t differentiate health care from almost any other market of any significance. If you define the relevant “market” broadly enough, you can characterize any decision not to purchase a good or service exactly the same way. Notice that [Judges] Steeh and Moon do not argue that everyone will inevitably use health insurance. Instead, they define the relevant market as “health care.” The same sleight of hand works for virtually any other mandate Congress might care to impose.

Consider the case of a mandate requiring everyone to purchase General Motors cars in order to help the auto industry. Sure, there are many people who don’t participate in the market for cars. But just about everyone participates in the market for “transportation….” We all move from place to place in some way. If we don’t do so by purchasing cars, we will have to pay for some other mode of transportation, such as planes, buses, or trains. Even people who walk everywhere they go will have to buy shoes to do so. Buying cars, planes, trains, buses and shoes are just different ways of paying for transportation.

How about a mandate requiring everyone to see the most recent Harry Potter movie? Sure, there are many people who don’t watch movies. But just about everyone participates in the market for entertainment. If you don’t go to the movies, that’s just a decision to pay for some other form of entertainment somewhere else…..

Judge Kessler does break some new ground relative to previous rulings by arguing that health care is special because providers are required to provide emergency services to the uninsured, which is not true of most other markets. But why is that difference constitutionally relevant? She doesn’t really give a clear explanation. The answer seems to be that failure to purchase therefore has adverse economic effects on producers and could potentially increase costs. Put that way, of course, failure to purchase health insurance turns out to be no different from failure to purchase any other product. Any time someone fails to purchase a product, be it cars, movie tickets, or broccoli, producers are made economically worse off than they would be if the potential buyer had made a different decision. This is true regardless of whether the producers must provide services to some consumers for free or not. At most, the latter condition exacerbates the negative impact on producers of a failure to purchase. But so too can all sorts of other market conditions and government regulations. Moreover, Judge Kessler’s approach would allow Congress to impose any mandate of any kind so long as it also required at least some producers to provide their product to at least some consumers for free. This too is a road to virtually unlimited federal power to impose mandates, since producers in any industry would be happy to accept a minor “free service” obligation so long as it was coupled with a more lucrative purchase mandate.

In a footnote, Judge Kessler blames the plaintiffs for supposedly choosing to “’free ride’ on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives.” But it is Congress, not the plaintiffs, which is responsible for the requirement that hospitals free emergency service to the uninsured. If it wanted to, Congress could have eliminated such free riding simply by lifting the requirement with respect to anyone who had enough income to purchase health insurance but chose not to do so. That approach would have prevented free riding without imposing any mandates, and would also have avoided any possible constitutional problems.

Finally, Kessler also upholds the mandate under the Necessary and Proper Clause. In so doing, however, she simply ignores the main arguments against the federal government’s position under that Clause: that the mandate is not “proper” even if “necessary” and that it runs afoul of the five factor test recently applied by the Supreme Court in United States v. Comstock. In fairness, the judge did not need to consider the Necessary and Proper Clause issue, since she had also decided to uphold the mandate under the Commerce Clause alone. But since she chose to reach the issue, she should have made at least some effort to explain why the key anti-mandate arguments (which had previously been accepted by two other federal district courts) are wrong.

UPDATE: I should note that Judge Kessler rejects the federal government’s argument that the mandate can be upheld under Congress’ power to impose taxes. Like every other court that has considered this argument so far, she concludes that the mandate is a “penalty,” not a tax. In reaching that conclusion, she relies on Judge Roger Vinson’s analysis in the Florida decision striking down the mandate. The federal government’s tax argument has now gone 0-4 in federal courts, including two adverse rulings by federal judges who upheld the mandate on other grounds.

Cornell lawprof William Jacobson detects a potential contradiction in Republican politicians’ view on constitutional federalism [HT: Steve Bainbridge]. Many of them claim that the Obamacare individual mandate falls outside of Congress’ power, but simultaneously support federally mandated tort reform that would override state tort law:

If we are against the federal government forcing us to purchase health insurance, shouldn’t we also be against the federal government telling us which state common law remedies we can pursue and on what terms? Isn’t this a matter for the states? …

I think there are distinctions which could be drawn between the mandate and tort reform, since tort reform does not require that one purchase a product. Most people who are against the mandate would acknowledge that the federal government can regulate the health care system, but that the mandate is a step too far….

Tort reform needs a careful airing of the constitutional issues before any vote; but at this point I’d be inclined to leave it to the states. If you don’t like your state’s tort system, do the same thing you would do if you didn’t like its tax or other systems: Move.

Federally mandated tort reform is surely permissible under current Supreme Court precedent, which allows Congress to regulate virtually any “economic activity.” Certainly, tort litigation falls within that category as currently defined by the Court, which encompasses any activity involving the “production, distribution, and consumption of commodities.” By contrast, the individual mandate goes beyond this by regulating inactivity and forcing individual citizens to purchase products they don’t want. So if your only objection to the individual mandate is that it goes beyond what current Supreme Court precedent allows, you can still consistently believe that it is unconstitutional, while federal tort reform is not.

In my view, however, current precedent is badly misguided in allowing Congress to regulate virtually any “activity.” Therefore, I think most federally mandated tort reform is in fact unconstitutional, even if the Supreme Court would permit it to go forward.

Federal reform is also largely unnecessary to solve the problem of excessive tort awards. Interstate competition can be just as effective as federal mandates, often more so. If a state allows excessive tort suits, many businesses will refuse to operate there or charge higher prices. This in turn reduces state tax revenue, forcing state legislatures to curb their courts. Over the last 20 years, numerous states have enacted tort reforms that do just that. Even Alabama, notorious for being the nation’s worst tort “hellhole” in the 1980s and 90s, has to a large extent cleaned up its act. Alabama ultimately replaced its pro-plaintiff state supreme court justices with ones that took a dimmer view of tort litigation. State leaders worried that Alabama would lose business if they did not. In most cases, “voting with your feet” is an excellent solution to the problem of runaway state tort law.

For a more extensive discussion of the reasons why federal tort reform is both unconstitutional and largely unnecessary, see this 2004 paper by my colleague Michael Krauss and Bob Levy. As Krauss and Levy point out, federal controls may be needed to curb state efforts to use tort law to regulate economic activity that takes place outside their borders. Voting with your feet is far less effective if the state can “come after you” even after you have left. That, however, is a limited intervention permissible even under a fairly narrow view of federal power. After all, the original meaning of the Commerce Clause was precisely to limit states’ ability to constrain interstate commerce and extend their regulatory authority beyond their borders.

UPDATE: I previously wrote about the same issue in this 2007 post.

Yale law professor Akhil Amar is one of the truly great constitutional law scholars of his generation, and I benefited enormously from taking his classes when I was in law school. Unfortunately, his recent LA Times article defending the constitutionality of the Obamacare individual mandate is not an example of his better work. I was going to write a response. But most of what I planned to say has already been well said in this post by Timothy Sandefur of the Pacific Legal Foundation (though I would have preferred it if both Amar and Sandefur had dialed down some of their rhetoric). I will add just a couple of points to Sandefur’s critique.

First, Amar asserts without any supporting argument that the mandate is a “tax” because the framers intended to create a “sweeping taxing power.” That, however, fails to come to grips with all the many reasons why the monetary fine imposed by the mandate is a penalty, not a tax. Under Amar’s analysis, pretty much any mandate can be considered a tax so long as the penalty for violating it is a monetary fine. That conclusion is at odds with both the text of the Constitution and Supreme Court precedent as recent as 1996. For details, see the amicus brief I recently wrote on behalf of the Washington Legal Foundation and several members of Congress in the Thomas More Law Center case (pp. 19-26). The framers may have a created a “sweeping” power to impose taxes for a variety of purposes, but that doesn’t mean that any monetary penalty automatically qualifies as a tax.

Second, Amar’s weakest argument comes when he tries to analogize Judge Roger Vinson’s decision striking down the mandate to the Dred Scott case:

In 1857, another judge named Roger distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America’s two major political parties was unconstitutional. The case was Dred Scott vs. Sanford, involving a slave who sued for his freedom because he had lived with his master in places where Congress had banned slavery. In an opinion by Chief Justice Roger Taney, the court not only ruled against Scott, saying that even free blacks were not citizens and therefore had no right to sue; it also declared the Missouri Compromise, which had outlawed slavery in Northern territories, unconstitutional.

History has not been kind to that judge. Roger Vinson, meet Roger Taney.

I agree that both Vinson and Taney are named Roger. Otherwise, the analogy doesn’t work at all. Perhaps the most important difference is that Dred Scott involved congressional power over federal territories, where Congress has plenary power similar to that which state legislatures have within their own states. Article IV, Section 3, Clause 2 of the Constitution gives Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Thus, the usual constitutional limits on federal authority did not apply. The Dred Scott situation would be analogous to the individual mandate case only if the mandate were limited to the District of Columbia and federal territories such as Guam (in which case it would probably be constitutional).

In addition, Vinson did not strike down “the basic platform of one of America’s two major political parties.” He merely invalidated one of many possible ways to achieve that party’s policy objectives in the field of health care, a point Vinson himself took care to emphasize in his opinion. The Democrats are left with many other options for extending government control over health care, and even for forcing insurance companies to cover people with preexisting conditions. By contrast, Dred Scott foreclosed pretty much any way for the federal government to ban slavery in the territories short of disobeying the Court. Whether Vinson “distorted the Constitution” or “disregarded precedent” depends on the validity of Amar’s other arguments, which I think are not very compelling for the reasons outlined by Sandefur. But even if Vinson was guilty of these sins, the only similarity to Taney’s performance in Dred Scott would be that both judges got a case wrong. By that standard, any mistaken judicial decision striking down a federal law can be analogized to Dred Scott.

UPDATE: I wrote this post before seeing David Bernstein’s recent post criticizing Amar’s op ed, which also takes aim at the Dred Scott analogy, albeit on somewhat different grounds. For what it’s worth, I think David’s critique and mine are mutually reinforcing. There is a serious case to be made in defense of the mandate. But analogies to Dred Scott don’t do much to advance the discussion.

Today’s Florida district court ruling that the individual mandate is unconstitutional is by far the best court opinion on this issue so far. Judge Roger Vinson provides a thorough and impressive analysis of the federal government’s arguments claiming that the mandate is authorized by the Commerce Clause and the Necessary and Proper Clause, and explains the flaws in each. He had already rejected the government’s claim that the mandate is constitutional because it is a tax in a previous ruling. So far, all three federal courts that have considered the tax argument have rejected it, instead ruling (in my view correctly) that the mandate is a penalty.

This is perhaps the most important of all the anti-mandate lawsuits because the plaintiffs include 26 state governments and the National Federation of Independent Business.

One of the best parts of today’s opinion is Judge Vinson’s critique of the federal government’s argument that the mandate is constitutional under the Commerce Clause because the Clause gives it the power to regulate “economic decisions”:

The problem with this legal rationale, however, is it would essentially have unlimited application. There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort. The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that — when aggregated with similar economic decisions — affect the price of that particular product or service and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on interstate commerce; rather, the difficult task is to find a decision that does not….

The important distinction is that “economic decisions” are a much broader and far-reaching category than are “activities that substantially affect interstate commerce” [which Supreme Court precedent allows Congress to regulate]. While the latter necessarily encompasses the first, the reverse is not true. “Economic” cannot be equated to “commerce.” And “decisions” cannot be equated to “activities.” Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is “economic activity.” There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes.

Judge Vinson has a similarly compelling answer to the government’s claim that choosing not to purchase health insurance is an “economic activity” because everyone participates in the health care market at some point:

[T]here are lots of markets — especially if defined broadly enough — that people cannot “opt out” of. For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile — now partially government-owned — because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business….

As Vinson explains, both the “economic decisions” argument and the “health care is special” argument ultimately amount to giving Congress the power to mandate virtually anything, and therefore conflict with the text of the Constitution and Supreme Court precedent. I addressed both arguments in more detail here. Judge Vinson also notes that the scenarios he raises are not merely a “parade of horribles,” but have a realistic basis, a point that I discussed in this recent post.

Turning to the Necessary and Proper Clause, Judge Vinson concedes that the individual mandate is “necessary” under existing Supreme Court precedent, but argues that it isn’t “proper” because the government’s logic amounts to giving Congress virtually unlimited power. I think this is exactly right; Vinson’s analysis is actually very similar to my own in this post (which is not to even suggest that he got the idea there).

Vinson also notes that the mandate probably runs afoul of the five part test recently outlined by the Supreme Court in United States v. Comstock, though he ultimately does not base his ruling on this point. I advanced a similar interpretation of Comstock and its implications for the mandate case in this article (pp. 260-67). Overall, Judge Vinson’s analysis of the Necessary and Proper Clause is a big improvement on Judge Henry Hudson’s performance in the recent Virginia ruling striking down the mandate.

Unlike Judge Henry Hudson in the Virginia case, Judge Vinson ruled that the mandate is not “severable” from the rest of the health care bill, and therefore invalidated it in its entirety. I think this may be somewhat too sweeping. However, Vinson is on strong ground in ruling that the mandate cannot be severed from the bill’s provisions forcing insurance companies to cover people with preexisting conditions. As he emphasizes, the federal government itself has repeatedly stressed this point in the litigation.

Finally, Judge Vinson rejected the 26 states’ argument that the funding provisions of the bill are unconstitutionally “coercive.” I may have more to say on this issue in a later post.

As I have often noted in the past, this decision is just another step in an ongoing legal battle. Ultimately, the issue of the individual mandate will be resolved by the courts of appeals and probably by the Supreme Court. Still, Judge Vinson’s ruling is a victory for opponents of the mandate. It’s also extremely well-written, and thereby provides a potential road map for appellate judges who might be inclined to rule the same way.

UPDATE: Co-blogger Orin Kerr takes Judge Vinson to task for holding that the mandate is not “proper” because it leads to unlimited federal power. Orin claims that this is is inconsistent with the “words” of Supreme Court precedent, citing a dissent by Justice Thomas in Gonzales v. Raich. However, the words of actual Supreme Court precedent repeatedly emphasize that Congress’ power is not unlimited. For example, in United States v. Lopez, the Court emphasized that ““The Constitution . . . withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation.” In its most recent Necessary and Proper Clause decision, United States v. Comstock, the Court similarly stated that there is no reason to “fear that our holding today confers on Congress a general ‘police power, which the Founders denied the National Government and reposed in the States’” (quoting United States v. Morrison); the Court emphasized that the regulation it was upholding was “narrow” in scope. Gonzales v. Raich itself gives Congress virtually unlimited power to regulate “economic activity,” but does not address the issue raised by the mandate case. Thus, if Judge Vinson is right that the federal government’s argument for the mandate would give Congress unlimited power, then the mandate indeed conflicts with the words of Supreme Court precedent.

Orin is also wrong to suggest that Vinson “used a first principle to trump existing Supreme Court caselaw.” Vinson in fact discussed those precedents, including Raich, in great detail, and noted how the individual mandate case is distinguishable from them (e.g. – the discussion of Raich on pp. 36-44 of his opinion).

As I have argued elsewhere, both Comstock and Raich give Congress vastly greater authority than is actually authorized by the Constitution. But going way too far down this road is not the same as authorizing completely unlimited congressional power. At the very least, it certainly isn’t what the words of the relevant Supreme Court precedents say they have done.

UPDATE #2: I have corrected an unfortunate typo in the title of this post.

UPDATE #3: In an update to his post, Orin insists that Judge Vinson failed to consider existing precedent, which in Orin’s view imposes only “symbolic” limits on congressional power. All I can say is that Vinson in fact discusses current precedent in great detail and explains why it doesn’t cover the mandate case. Moreover, nowhere does that precedent state that the remaining limits to federal power are purely symbolic and would not strike down any significant congressional policies. Thus, if Vinson is correct in concluding that the argument for the individual mandate would give Congress unconstrained authority to mandate anything it wants, then the mandate really is contrary to existing precedent. At the very least, existing precedent certainly doesn’t require upholding the mandate. I discussed the relevant precedent in more detail here, here, and here.

At Prawfsblawg, Carlton Larson responds to my critique of his argument that federal regulation of strikes and consumer boycotts are regulations of inactivity similar to the Obamacare individual mandate. Larson doesn’t comment on my discussion of strikes. But he does take issue with my analysis of boycotts, which noted that boycotts qualify as “economic activity” because they “involve a concerted effort to pressure some firm or government into changing its policies. That differentiates them from an individual consumer’s decision not to purchase a particular product.” Larson replies:

Count me unpersuaded by this distinction. Suppose someone forwards me an e-mail urging me not to buy the products of Widget Co. because the company engages in child labor overseas. I then decide not to buy that company’s product. Under Professor Somin’s view, both the e-mail and my decision not to buy the particular product are a form of economic activity.

If this is true, it is very hard to see why the individual mandate is any different. Aren’t people who refuse to buy health care simply boycotting health insurance companies? Why would it make any constitutional difference if they did so in concert with other people or what their particular reason is for doing so? Indeed, one would think that a boycott of a company for political reasons, given the First Amendment, would receive more, not less, constitutional protection. If Somin is correct that such boycotts can be prohibited (a surprising admission by a prominent libertarian constitutional theorist), then the individual mandate really is an easy case.

I think it’s fairly obvious that sending an e-mail urging people to boycott a company is a form of activity. It’s possible, however, that merely reading the e-mail and choosing to buy a product is not, or at least is not “economic” activity. No federal court has ever held that the federal government has the power to force consumers to buy products they decided to not to purchase as a result of reading a call for a boycott. And I certainly think that such a statute would be unconstitutional if one were ever enacted. So perhaps I was too quick to conclude that passive participation in a boycott qualifies as economic activity, though organizing one or actively promoting it surely does. Note, however, that there is a big difference between a regulation forbidding consumer boycotts, and one requiring a commercial enterprise to buy certain products or serve particular customers as a condition of staying in business. A law requiring the latter regulates the preexisting economic activity of operating a business, much like a law restricting strikes regulates the economic activity of employment for pay.

Obviously, the First Amendment might constrain some congressional regulation of politically motivated boycotts, as Larson suggests. But that issue is separate from the question of whether such regulation falls within the scope of Congress’ power under the Commerce Clause.

Finally, I should note that I did not say that the Constitution gives Congress the power to prohibit boycotts. I merely meant that such regulation is permissible under current precedent, which allows Congress to regulate virtually any “economic activity.” As I have argued elsewhere, I think much of that precedent is badly misguided. The activity-inactivity distinction is an interpretation of current precedent, which focuses heavily on the concept of “economic activity.” It is not an endorsement of that precedent or a theory of the correct interpretation of the constitutional limits to federal power.

One of the key arguments in Obamacare individual mandate is that the federal government lacks the power to regulate inactivity, and therefore cannot force people to buy products they don’t want, including health insurance. At Prawfsblawg, law professor Carlton Larson argues that the federal government already regulates inactivity because, in some cases, it forbids strikes:

Opponents of the individual mandate assert that under the Commerce Clause, the federal government can regulate only activity, not inactivity.

Yet the federal government regulates inactivity under the Commerce Clause all the time. Consider federal labor legislation that, under certain situations, prohibits employees from striking. The employees aren’t doing anything – they’re doing nothing, and it’s precisely this inactivity that Congress prohibits. The employees are compelled to engage in economic activity with another private party. True, this power rests on direct regulation of interstate commerce, and not the substantial effects test, but it does suggest that the activity/non-activity distinction is not fundamental to Commerce Clause jurisprudence writ large.

Moreover, consider the case of “economic boycotts,” when people refuse to do business with other parties. They are literally doing nothing, yet our widespread terminology explicitly describes this inactivity as “economic” and assumes that the boycott will have an economic effect.

I don’t think this argument works. Federal laws restricting strikes are regulating the commercial activity of employment relations. They only apply to people who have employment relationships with particular employers. Working for pay qualifies as “economic activity” even under a restrictive definition of the concept, and certainly does under the Supreme Court’s extremely broad definition adopted in Gonzales v. Raich: any action that involves the production, consumption or distribution of commodities.

Moreover, a strike or a boycott is itself a form of economic activity. It is not just “doing nothing.” A strike is an organized effort to put pressure on an employer to make concessions to the strikers. That’s what differentiates a strike from a simple decision to quit by an individual employee, which federal labor law does not restrict. Similarly, consumer boycotts also involve a concerted effort to pressure some firm or government into changing its policies. That differentiates them from an individual consumer’s decision not to purchase a particular product. Participating in a strike or a boycott surely counts as “activity” in both ordinary language and legal terminology.

The individual mandate, by contrast, does not target any preexisting economic activity, such as an employment relationship. Nor does it restrict only concerted efforts to pressure insurance companies into changing their policies. Instead, it forces people to buy insurance irrespective of their other activities. The real employment analogue to the individual mandate would be a law forcing people to work for a particular employer even if they had never worked for it before or signed any contract with it. As with any other exercise in legal line-drawing, there are cases where the line between activity and inactivity is genuinely ambiguous. But strikes and boycotts don’t seem like an example of such a close case.

As a libertarian, I think that the federal government should not forbid either strikes or consumer boycotts, just as I also think that the employers should be free to fire strikers or to refuse to hire people unwilling to sign a contract with a no-strike clause. So I am no fan of the anti-strike laws cited by Larson. Be that as it may, those laws clearly regulate economic activity in ways that the individual mandate does not.

Yesterday, the Supreme Court refused to hear United States v. Alderman, a potentially important Commerce Clause case [HT: Josh Blackman]. In Alderman, the Ninth Circuit Court of Appeals had upheld the constitutionality of a federal statute that banned the possession of body armor by felons. The Ninth Circuit relied on the Supreme Court’s 1977 decision in Scarborough v. United States, which it interpreted as allowing Congress to forbid the possession of any item that had ever passed in interstate commerce in any way. Justice Clarence Thomas wrote a stinging dissent from the decision to deny certiorari, which was joined by Justice Scalia:

Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence. Joining other Circuits, the Court of Appeals for the Ninth Circuit has decided that an “implic[it] assum[ption]” of constitutional-ity in a 33-year old statutory interpretation opinion“carve[s] out” a separate constitutional place for statutes like the one in this case…

Further, the lower courts’ reading of Scarborough, by trumping the Lopez framework [established by the Supreme Court in 1995], could very well remove any limit on the commerce power. The Ninth Circuit’s interpretation of Scarborough seems to permit Congress to regulate or ban possession of any item that has ever been offered for sale or crossed state lines. Congress arguably could outlaw “the theft of a Hershey kiss from a corner store in Youngstown, Ohio, by a neighborhood juvenile on the basis that the candy once traveled . . . to the store from Hershey, Pennsylvania.” United States v. Bishop, 66 F. 3d 569, 596 (CA3 1995) (Becker, J., concurring in part and dissenting in part). The Government actually conceded at oral argument in the Ninth Circuit that Congress could ban possession of french fries that have been offered for sale in interstate commerce. Such an expansion of federal authority would trespass on traditional state police powers.

I agree with most of Thomas’ critique of the Ninth Circuit opinion, and I too wish that the Court had taken the case and reversed it. As he points out, Scarborough was a statutory interpretation case that did not address the constitutional limits to Congress’ power. The Scarborough decision was interpreting what Congress did in a 1968 statute restricting firearm possession by felons, not whether what it did was constitutional. As Justice Thurgood Marsall explained in his opinion for the Court, “The issue in this case is whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce” [emphasis added]. Moreover, as Thomas also explains, the lower courts’ interpretation of Scarborough is inconsistent with more recent Supreme Court Commerce Clause decisions.

What does the Supreme Court’s refusal to hear Alderman mean for future Commerce Clause cases, such as the current litigation over the Obama health care plan’s individual mandate? Probably not much. The Court refuses to take the vast majority of petitions for certiorari, including many that focus on important issues. So yesterday’s decision doesn’t necessarily mean that the majority of the justices agree with the Ninth Circuit. It’s possible, instead, that they plan to clarify the Court’s Commerce Clause jurisprudence in more detail once the individual mandate cases get to them, and don’t want to take any other Commerce clause cases until then. Or maybe they simply don’t want to address the Scarborough issue until there is a circuit split on the subject.

Even if the Court majority does some day endorse the Ninth Circuit’s logic, that still would not dispose of the mandate case. After all, the Ninth Circuit relied on the idea that the Commerce Clause gives Congress the power to ban possession of any good that has ever crossed state lines or been sold in interstate commerce. By contrast, the individual mandate regulates the condition of not having health insurance, which does not require the possession of any good – whether purchased in interstate commerce or not. Indeed, the mandate doesn’t regulate any activity of any kind.

Congress could have structured the mandate in such a way as to mirror the body armor statute upheld by the Ninth Circuit in Alderman. For example, it could have passed a law forbidding anyone who has not purchased health insurance to possess any medicine that had ever been sold in interstate commerce or crossed state lines. But that’s not what it chose to do in the health care bill, probably for political reasons. The hypothetical statute I describe would have been widely denounced as cruel to the poor and uninsured. It probably could not have gotten through Congress, especially in light of the narrow margin by which the House passed the less unpopular bill that actually did get enacted.

That said, I do think that the Ninth Circuit’s approach is troubling for the reasons noted by Thomas. It doesn’t quite “remove any limit on the commerce power,” as he suggests. But it does interpret that power far more broadly than can possibly be justified by the text of the Constitution. Hopefully, the Court will overrule it in a future case.

For those who may be interested, I have written an amicus brief in Thomas More Law Center v. Obama, one of the cases challenging the constitutionality of the Obama health care bill’s individual mandate. I wrote the brief on behalf of the Washington Legal Foundation and twelve members of the House of Representatives. It is available here. The case is currently before the Sixth Circuit Court of of Appeals.

Because of space constraints, we chose to focus only on the federal government’s two main arguments – the claims that the mandate is justified by Congress’ powers under the Commerce Clause and the Tax Clause. The brief includes a detailed refutation of what has become the government’s central argument under the Commerce Clause: the assertion that the mandate is constitutional because going without health insurance is an “economic decision” (pp. 14-18). I first presented the key arguments in this section right here on the VC, though of course the brief goes into much greater detail.

Although we could not cover the federal government’s Necessary and Proper Clause argument in this brief, it was the main focus of the excellent amicus brief filed by co-blogger Randy Barnett and the Cato Institute. WLF and I presented our own take on the Necessary and Proper Clause issues in the amicus brief I wrote for them and a group of prominent constitutional law scholars in the Virginia anti-mandate case.

Here is my discussion of the constitutionality of the individual mandate with Simon Lazarus on C*SPAN’s Washington Journal this morning:

I was a little frustrated with the format. Lazarus, who is a perfectly nice man, was able to make long speech-like points, but because the host then moved to a phone call or tweet without inviting me to respond, a lot of what he said went unrebutted. Perhaps I should just have jumped in, but this seemed to violate the well-mannered spirit of C*SPAN.

UPDATE: This is from David Yerushalmi, who represents Thomas More Law Center in its lawsuit challenging the individual mandate that is now on appeal to the Sixth Circuit:

You indicate in your VC blog that Lazarus is a “perfectly nice man.” You have more patience for raw dishonest polemics than I have. While he is superficially “polite,” he was being purposefully dishonest and branding you and the rest of us as dangerous radicals. That might cut it on MSNBC or Fox News where discussants are expected to marginalize the adversary, in a CSPAN format where you were playing by the rules to a fault, he took advantage. We can all disagree about next steps in the nationalization of all gov’t regulation and the destruction of federalism, but to describe any of the serious arguments we have all raised against the Individual Mandate in the way Lazarus did is destructive of serious discourse and pure gutter level polemics.

Readers can judge for themselves by watching the program. As an academic, I suppose I am used to these sorts of polemics.

Famed Supreme Court reporter Linda Greenhouse has a very uneven New York Times blog post on the individual mandate litigation and the Supreme Court’s federalism jurisprudence. Some of her points are at least reasonable. For example, I too think it’s quite possible that the Supreme Court will ultimately uphold the mandate; I even agree with her that this is more likely than the opposite result, though the chances of the anti-mandate forces are much better than the many once thought. Greenhouse may also be correct in her speculation that the deciding vote will ultimately be cast by Chief Justice John Roberts.

Some of her other claims are dubious or misleading. For example, she cites my article on United States v. Comstock in support of her claim that Comstock is a key precedent supporting upholding the mandate. “[T]he implications of its elevation of the necessary and proper clause were clear to critics of the newly enacted health care law,” she writes, referring to me (since no other critics are cited). It’s true, as Greenhouse notes, that I wrote in that article that Comstock is “a step in the direction of interpreting the clause as a virtual blank check for Congress to regulate almost any activity it wants” (emphasis added by me for this post). But of course the key argument against the mandate is that it regulates inactivity. Even more important, I also wrote in the same article that the mandate probably fails the five part test established by the Comstock majority (pp. 262-63), and that Comstock doesn’t even address the most important Necessary and Proper Clause issue raised by the mandate litigation – the definition of what counts as a “proper” law (pp. 263-64).

It’s possible that Greenhouse simply doesn’t agree with my analysis of Comstock. That’s fine. As I explained in the article, Comstock is vague on several key points, so multiple interpretations of its meaning are possible. We may not know what it really means until the Supreme Court clarifies it in some future case. But Greenhouse should not cite me in a way that gives the impression that she and I agree about the implications of Comstock for the mandate litigation.

Greenhouse also makes the dubious claim that the Supreme Court’s 2001 decision in Nevada v. Hibbs was “the case that effectively brought an end to the [Rehnquist Court's] federalism revolution.” Hibbs ruled that Congress had the power to force state governments to extend family leave to their employees under the Family and Medical Leave Act, overriding what the Court had previously said was the Eleventh Amendment bar against congressional authorization of private lawsuits against state governments. But, as Greenhouse notes later in her article, Hibbs reached this conclusion on the grounds that the FMLA was a tool for combating sex discrimination, preventing which is a goal of the Fourteenth Amendment (which, according to the Court, supersedes Eleventh Amendment sovereign immunity when the two conflict). Outside the confines of sex and race discrimination, Hibbs left the Court’s Eleventh Amendment sovereign immunity jurisprudence completely intact. And of course it did not undercut the Court’s pathbreaking decisions in Lopez and Morrison limiting Congress’ Commerce Clause authority.

If there is a case that really trimmed the sails of the federalism revolution, it was not Hibbs but Gonzales v. Raich, where the Court endorsed the idea that the Commerce Clause gives Congress the power to regulate almost any “activity,” especially if it can be considered “economic” under a very broad definition of that term. The individual mandate litigation is only viable in the wake of Raich because it represents an almost unique instance where Congress has tried to regulate inactivity.

Strangely, Greenhouse does not even mention Raich in her piece. That may be because doing so would have undermined her speculation that Chief Justice Rehnquist might have voted to uphold the mandate. She extols Rehnquist’s role as the author of Hibbs, but ignores the fact that he joined Justice Sandra Day O’Connor’s forceful dissent in Raich. Since Rehnquist died five years ago, no one can really know what he would think of the mandate. But the man who joined O’Connor’s stinging critique of Raich’s “breathtaking” definition of economic activity on the grounds that the Commerce Clause should not be interpreted to “sweep all of productive human activity into federal regulatory reach” might well have been skeptical of the mandate’s constitutionality.

Many critics of Judge Hudson’s opinion in Virginia v. Sebelius have shorted his discussion of the Necessary and Proper Clause. (Even some of us who support the opinion have accepted this critique.) But Brooklyn Law’s Jason Mazzone suggests Judge Hudson’s critics are misreading his opinion, which was written more for Justice Scalia than legal academics.  According to Professor Mazzone, “read in light of Scalia’s concurring opinion in Raich, Judge Hudson’s analysis is considerably more coherent that his critics allow.”   He explains:

Though Judge Hudson doesn’t mention it, his opinion hews closely to Scalia’s concurring opinion in Gonzales v. Raich. There, Scalia provided what I think is a very helpful discussion (more helpful than the majority opinion in Raich did) for why, in light of Lopez and Morrison, Congress could use its commerce clause power to prohibit cultivation and possession of marijuana for personal use. Scalia explains in his opinion that Congress can reach activities that substantially affect interstate commerce—Lopez’s third category—not by using the commerce clause alone but only with the necessary and proper clause. In addition, Scalia says, that same clause allows Congress to regulate intrastate non-economic activities if the regulation of them is a necessary part of a more general regulation of interstate commerce. . . .

Scalia’s opinion in Raich on the scope of the necessary and proper clause refers throughout to the regulation of activity: he uses the word 42 times. Activity is the key to understanding Judge Hudson’s opinion in Virginia v. Sebelius.

Judge Hudson doesn’t deny that Congress has power to regulate the interstate health and insurance markets. He also doesn’t dispute that (consistent with McCulloch) the necessary and proper clause allows Congress to regulate those markets by means that are not themselves regulations of interstate commerce. However, in Judge Hudson’s view, the necessary and proper clause doesn’t allow Congress to regulate inactivity as a means to effectuate a regulation of interstate commerce. On my reading of Judge Hudson’s opinion, the commerce clause is a power to regulate an interstate commercial activity, the necessary and proper clause gives Congress leeway to regulate intrastate activities in order to achieve that end, but regulation of inactivity is, categorically, not a reasonable means to attain a legitimate end under the commerce clause. “The constitutional viability of the Minimum Essential Coverage Provision,” he says, “turns on whether or not a person’s decision to refuse to purchase health care insurance is . . . an activity.”

The New York Times Room for Debate blog has posted a forum where various scholars weigh in on today’s district court decision striking down the individual mandate. It includes contributions by co-blogger Randy Barnett and myself. My piece briefly discusses the Commerce Clause and Tax Clause aspects of the ruling:

Judge Henry Hudson’s decision today struck down as unconstitutional the “individual mandate” included in the health care bill enacted earlier this year; the mandate requires most Americans to purchase government-approved health insurance plans by 2014. The most powerful parts of Judge Hudson’s ruling reject the federal government’s arguments claiming that the mandate is justified by Congress’ powers to impose taxes and regulate interstate commerce…..

The federal government claims that forcing people to purchase health insurance regulates economic activity because everyone eventually uses health care in some form. But as Judge Hudson points out, “the same reasoning could apply to transportation, housing, or nutritional decisions. This broad definition of the economic activity subject to congressional regulation lacks logical limitation.” The same reasoning would give Congress the power to force everyone to purchase a car because everyone eventually uses some form of “transportation.”

Judge Hudson is equally persuasive in rejecting the argument that the mandate is authorized by Congress’ power to impose taxes. As he notes, it is actually a financial penalty for refusing to comply with a regulation. In September 2009, President Obama himself stated that “to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.” He was right. If the mandate qualifies as a tax merely because it punishes violators with a fine, then Congress could require Americans to do almost anything on pain of having to pay a fine if they refuse.

In his most recent post in our exchange about the individual mandate and the Commerce Clause, Orin distinguishes between a conception under which Congress’ commerce power is “not unlimited” and one where it is “significantly limited.” He argues that the Court’s jurisprudence endorses the former, but not the latter.

In my view, however, concluding that the individual mandate is authorized by the Commerce Clause because it regulates a decision that has some economic impact is essentially equivalent to concluding that Congress’ power is unlimited. Virtually any decision to do or not do anything has economic effects, if only because it necessarily implies a decision not to devote the same time and effort to participation in some market. I outlined this logic more fully in my original post, and Orin has yet to challenge it.

It is, of course, true that modern Commerce Clause jurisprudence has given Congress extremely broad authority, in my view mistakenly. That, however, does not mean that there are no limits that are “significant.” If the Court merely wanted to insist on utterly insignificant limits, why did it put so much effort into cases like Morrison and Lopez, and why have the conservative justices, including key swing voter Justice Kennedy, repeatedly emphasized the importance of those limits? To be sure, those limits are still “insignificant” with respect to the vast majority of possible regulations that Congress might want to enact. With the individual mandate, however, Congress has managed to blunder into one of the few remaining areas where doctrinal limits on the Commerce power still have some bite. It did so by targeting something that can’t be defined as regulable “activity” without collapsing the remaining limits on the scope of that concept.

Even more to the point, both the Court majority and Justice Kennedy have specifically rejected the claim that Congress can regulate something merely because doing so has some economic effect, which is the central premise of the argument I have been criticizing. After all, carrying a gun in a school zone affects various markets in a variety of ways pointed out by Justice Breyer in his Lopez dissent. The majority justices did not deny that those effects exist, but nonetheless concluded that the Gun Free School Zones Act was unconstitutional. As Kennedy put it in his Lopez concurrence, “any conduct in this interdependent world of ours has an ultimate commercial origin or consequence,” which is why the mere presence of economic motives or effects is not enough to justify congressional regulation under the Commerce Clause. If it were, then Congress’ commerce power would indeed be unlimited.

In his response to my post on why going without health insurance doesn’t qualify as an “activity” that Congress can regulate under the Commerce Clause, Orin Kerr claims that my reasoning “begins with an assumption as to how much power Congress has, and he then reasons backwards to infer the meaning of ‘activity’ in order to make that assumption correct.” Therefore, Orin believes that the argument won’t persuade anyone who isn’t already inclined to agree with it.

What Orin ignores is that the relevant “assumption” – that Congress doesn’t have unlimited authority to use the Commerce Clause to regulate anything and everything – is not idiosyncratic to me. It has been repeatedly reaffirmed by the Supreme Court, even in those cases where it has interpreted Congress’ powers most broadly, including even Gonzales v. Raich, which distinguished the statute it upheld from those that don’t regulate “economic activity” defined as the production, consumption, or distribution of a commodity; the state of not having health insurance doesn’t qualify under any of these three counts.

As the Court explained in United States v. Lopez, “[t]he Constitution . . . withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation.” Orin is fond of citing Justice Kennedy’s views. So it’s worth noting that Justice Kennedy recently wrote an opinion emphasizing the need to enforce the federalism “principles that control the limited nature of our National Government.” In his Lopez concurrence, cited in Orin’s post, Kennedy also noted that “In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far.” That seems to squarely reject the argument that the individual mandate is constitutional merely because not having health insurance has some kind of economic motive or has an impact on markets. And of course that claim is precisely what the lower court judges who have upheld the mandate rely on, especially in what I dubbed the “broad version” of their argument.

If my analysis in the previous post is correct, the Commerce Clause rationale for the individual mandate can’t be squared with the principles endorsed by the Court and Justice Kennedy because it would give Congress virtually unlimited authority to mandate anything it wants, so long as the mandate has some effect on prices within some market (which is true of virtually any requirement).

If I were basing the analysis on my own view of the correct interpretation of the Commerce Clause, I would simply rely on the powerful arguments suggesting that Raich and many other modern Commerce Clause cases can’t be squared with the text, structure, and original meaning of the Constitution. Under an originalist or textualist approach, the case against the individual mandate is easy to make, and indeed overwhelming. My point in the previous post, however, was to explain why the mandate can’t be squared even with the much weaker limits on Congressional Commerce Clause power endorsed by current Supreme Court precedent.

Finally, Orin reiterates his previous argument that the mandate can be upheld under the Necessary and Proper Clause. That, however, is a different claim from the one I was addressing, which is the argument that not having health insurance is an “activity” that Congress can regulate using its powers under the Commerce Clause alone. That’s the theory adopted by both of the two district judges who have upheld the mandate so far. But for those who may be interested, I responded to Orin’s Necessary and Proper Clause theory here and here.

UPDATE: It’s also worth noting that Orin doesn’t seem to dispute my argument that the same logic used to justify the individual mandate under the Commerce Clause would also justify federal mandates requiring people to purchase GM cars, go to the movies, or even establish and operate a blog (though perhaps that may not seem onerous to a blogger as active as Orin), indeed virtually mandate Congress might care to impose. I recognize that it’s difficult to persuade people who have already formed strong opinions on an issue as contentious as this one. But, fine points of legal doctrine aside, I suspect that the sweeping nature of this kind of power might give pause to at least some people who haven’t yet reached a firm conclusion on the question.

Current US Supreme Court Commerce Clause precedent holds that Congress can regulate almost any “economic activity” and most “noneconomic activities” as well. The Obamacare individual mandate, however, seems to regulate inactivity – notpurchasing a product. Both Judge Steeh in the Thomas More Law Center decision and Judge Moon in the recent Liberty University ruling argue that, contrary to appearances, not having health insurance really is an “activity.” I have previously criticized parts of this argument here and here. But it would be helpful to address it more thoroughly.

The argument comes in two forms: a broad version claiming that any “economic decision” qualifies as an economic activity, and a narrow one focusing on supposedly unique characteristics of the health care market. Both versions fail for similar reasons: they end up giving Congress unconstrained power to mandate virtually anything, something the Supreme Court has repeatedly said is impermissible.

I. The Broad Version.

The broad version of the argument claims that any decision with economic effects qualifies as an economic activity. Consider Judge Moon’s statement of this argument:

[D]ecisions to pay for health care without insurance are economic activities…[because Plaintiffs’ preference for paying for health care needs out of pocket rather than purchasing insurance on the market is much like the preference of the plaintiff farmer in Wickard [v. Filburn] for fulfilling his demand for wheat by growing his own rather than by purchasing it….. Because of the nature of supply and demand, Plaintiffs’ choices directly affect the price of insurance in the market, which Congress set out in the Act to control.

The flaw in this argument is obvious. Because “of the nature of supply and demand” any decision to do or not do anything will directly affect the price of some good or other. If I choose not to purchase a car, that will affect the price of cars. If I choose to sleep for an hour rather than work, I will earn less money, which in turn means that I will engage in less consumer spending and/or investment, which will affect the prices of various goods. By this analysis, Congress could not only force people to purchase any product of any kind, it could also force them to engage in just about any other kind of activity that affects the price of some good or other that “Congress set out… to control.”

As I have previously pointed out, Judge Moon’s citation of Wickard does not help his case because Wickard involved regulation of economic activity narrowly defined: commercial farming. Nothing in Wickard suggests that Congress has the power to force ordinary people to purchase wheat merely by virtue of their being residents of the United States.

II. The “Health Care is Special” Version.

In addition to arguing that Congress can regulate virtually any “economic decision,” Steeh and Moon also contend that the individual mandate regulates an activity because of the special nature of the health care market. As Judge Steeh puts it, “[t]he health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market. Indeed, the opposite is nearly always true.” For this reason, he contends, “The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market.” Since everyone participates in the health care market, the argument goes, choosing not to buy health insurance does not qualify as inactivity. It’s just a decision to get health care some other way.

In reality, it is not quite true that everyone purchases health care. Some people rely on charity or home remedies, or simply never get sick enough to require medical treatment before they die. Still, it’s certainly true that the overwhelming majority of people participate in the health care market in some way.

This, however, doesn’t differentiate health care from almost any other market of any significance. If you define the relevant “market” broadly enough, you can characterize any decision not to purchase a good or service exactly the same way. Notice that Steeh and Moon do not argue that everyone will inevitably use health insurance. Instead, they define the relevant market as “health care.” The same sleight of hand works for virtually any other mandate Congress might care to impose.

Consider the case of a mandate requiring everyone to purchase General Motors cars in order to help the auto industry. Sure, there are many people who don’t participate in the market for cars. But just about everyone participates in the market for “transportation.” As Judge Steeh might put it, “No one can guarantee….[that he] will never participate in the [transportation] market.” We all move from place to place in some way. If we don’t do so by purchasing cars, we will have to pay for some other mode of transportation, such as planes, buses, or trains. Even people who walk everywhere they go will have to buy shoes to do so. Buying cars, planes, trains, buses and shoes are just different ways of paying for transportation.

How about a mandate requiring everyone to see the most recent Harry Potter movie? Sure, there are many people who don’t watch movies. But just about everyone participates in the market for entertainment. If you don’t go to the movies, that’s just a decision to pay for some other form of entertainment somewhere else. Even ascetic monks who get their entertainment solely from meditation still have to use resources to pay for the space in which they meditate.

Finally, consider a mandate requiring everyone to pay to establish a blog and write in it every day. True, many people don’t participate in the blogosphere in any way. But everyone participates in the market for information. You can’t live without it! And blogging is just one way to convey information about yourself and your views to others. If you don’t blog, that means you will be sending out information in some other way: e-mail, snail mail, telephones, smoke signals…. And of course all of these modes of communication have to be paid for. No “living, breathing being…..can… opt out of this market.”

I won’t bore readers with the details. But it’s easy to apply the same analysis to just about any mandate to do anything.

Perhaps the real “specialness” of health care resides in the fact that it is such an important good. It is indeed very important (though the same can be said for transportation, information and various other goods without which modern society would collapse). But that does not make not having health insurance any more an “economic activity” than it would be otherwise. In that legally relevant respect, health care turns out not to be special at all.

Yesterday, federal district Judge Norman Moon of the Western District of Virginia upheld the Obamacare individual mandate against a constitutional challenged filed by Liberty University and several private plaintiffs. For the most part, Judge Moon’s reasoning closely follows that of Michigan district Judge George Caram Steeh in the recent Thomas More Law Center decision. Both judges upheld the mandate under the Constitution’s Commerce Clause alone on the grounds that failure to purchase health insurance, even if it doesn’t qualify as “economic activity,” is an “economic decision” that has substantial effects on interstate commerce. I outlined my objections to Judge Steeh’s reasoning here and here, and will not repeat them in detail in this post. Here is the most important flaw:

“Economic decisions,” [Steeh] reasoned, include decisions not to engage in economic activity. This approach would allow the Commerce Clause to cover virtually any choice of any kind. Any decision to do anything is necessarily a decision not to use the same time and effort to engage in “economic activity.”

If I choose to spend an hour sleeping, I necessarily choose not to spend that time working or buying products. Under Judge Steeh’s logic, the Commerce Clause authorizes Congress to force workers to get up earlier in the morning so that they would spend more time on the job.

Judge Moon also contends that the mandate should be upheld under Gonzales v. Raich and Wickard v. Filburn. In reasoning thus, he simply ignores the various ways in which Raich does not in fact cover the mandate case, which I analyzed in detail here. To briefly summarize, Raich gave Congress the power to regulate virtually any kind of “economic activity” and a wide range of “noneconomic” activities, but said absolutely nothing about regulation of inactivity, which is what the mandate does. His reliance on Wickard is even more dubious, since Wickard involved regulation of economic activity narrowly defined (commercial farming); I discuss this point in more detail in my amicus brief on behalf of the Washington Legal Foundation and a group of constitutional law scholars, submitted in the anti-mandate case filed by the state of Virginia (pp. 11-12).

Interestingly, Judge Moon follows Florida District Judge Roger Vinson in ruling that “the better characterization of the exactions imposed under the Act for violations of the employer and individual coverage provisions is that of regulatory penalties, not taxes.” This rejects the federal government’s claim that the mandate should be upheld because it is a tax that Congress has the power to impose under the Tax Clause.

Finally, Moon ruled that both Liberty University and some of the individual plaintiffs have standing. This contributes to an increasing trend under which every judge who has considered the case has ruled that plaintiffs have standing so long as they are state governments, private individuals who do not have health insurance, or employers who do not provide their employees the kind of health insurance benefits that the law requires.

Between this decision and the Michigan case, anti-mandate plaintiffs have now lost the first two district court rulings that addressed the merits of the mandate litigation. However, it is highly likely that they will win at least one and probably both of the next two decisions: those in the cases brought by the Commonwealth of Virginia and a coalition of twenty state governments and the National Federation of Independent Business. Both the Virginia and Florida judges have issued preliminary rulings expressing strong skepticism about the federal government’s arguments. The New York Times reports that the Obama administration expects that there is a high probability that they will lose one or both of these cases at the district level.

As should by now be obvious, no district court is going to resolve this issue definitively. All of these cases will next be addressed by federal courts of appeals. And there is a high likelihood that the matter will ultimately be resolved by the Supreme Court (a virtual certainty if even one federal appellate court strikes down the mandate). If the plaintiffs lose all the district court decisions, that could create momentum for the federal government that will be difficult to overcome. Court of appeals judges might hesitate to upset what would seem like an emerging judicial consensus. Such an outcome is, however, highly unlikely given the situation in the two cases filed by state governments.

I continue to believe that the Supreme Court is more likely to uphold the mandate than strike it down. But the course of the litigation so far shows that there is no consensus on the issue among judges and other experts, and that the plaintiffs have a much better chance of winning than many commentators (myself included) initially thought.

UPDATE: For those interested, the ACA Litigation Blog has a more complete summary of Judge Moon’s ruling that covers various minor issues that I have decided not to include in this post.

Yesterday, I published an op ed on the state of the individual mandate litigation in the Richmond Times-Dispatch:

When 21 states and several private groups initiated lawsuits challenging the constitutionality of the Obama health care law earlier this year, critics denounced the suits as frivolous political grandstanding. But it is increasingly clear that the plaintiffs have a serious case with a real chance of victory.

The suits 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 judges considering the Florida and Virginia cases have both issued rulings rejecting the federal government’s motions to dismiss the suits and indicating that the mandate can’t be upheld based on current Supreme Court precedent. By contrast, Michigan district Judge George Caram Steeh wrote a decision concluding that the mandate is constitutional. But even he agreed that the case raises an “issue of first impression.”

The op ed focuses primarily on the recent district court decisions in the Virginia, Michigan, and Florida cases, which I blogged about in more detail here, here, and here. So there will be few new points for those who have closely followed my previous VC writings on the mandate litigation. My main purpose in the op ed was to briefly analyze the three rulings and explain why the anti-mandate plaintiffs have a strong case that could well prevail, even though they still face an uphill struggle.

I would add that the results of the recent election modestly increase the chances that the plaintiffs will win. Federal courts are unlikely to strike down a major federal policy initiative that has strong presidential, congressional, and popular support. But last week’s elections brought to power a House majority that opposes the Obama health care plan, strengthened plan opponents in the Senate, and reaffirmed that it remains unpopular (although the election turned primarily on the economy, the health care plan probably increased the magnitude of the Democrats’ defeat). A recent AP poll found that 52% of likely voters oppose the plan, with 41% supporting it, and strong opponents greatly outnumbering strong supporters.

Ideally, such “legal realist” factors should not influence judicial decision-making. But the historical evidence suggests that they often do. Judges are unlikely to strike down the mandate merely because the political winds are blowing against it. But those inclined to do so for other reasons are now less likely to be deterred by fear of a showdown with a president, Congress, and public opinion unified against them.

A recent issue of the Michigan Law Review features Jack Balkin’s article Commerce. (109 Mich. L. Rev. 1 [2010].) The article argues that in the original meaning of the Constitution, “commerce” was understood to include a broad variety of social relationships, including relationships that had nothing to do with economic activity. Accordingly, writes Balkin, the original meaning of the interstate commerce power justifies not only the entire New Deal, but almost every expansion of congressional power since then.

In a reply article for the Michigan Law Review‘s on-line supplement, First Impressions, Rob Natelson and I challenge Balkin’s analysis. We argue that “commerce”–as it was actually used in the Constitution–includes mercantile exchange, and a few closely-related activities, such as navigation.

For example, for dictionary definitions of ”commerce,” Balkin relies entirely on the 1785 edition of Samuel Johnson, whose first word in the definition of “commerce” is “intercourse.” We look at the 1786 edition of Johnson, as well as six other influential dictionaries of the period. All of these dictionaries have less expansive definitions.

In addition:

Balkin entirely fails to address a decisive historical fact: during the ratification debates, the Constitution’s advocates repeatedly and clearly represented to the general public many areas over which the new government would have no power at all, at least within state boundaries. Their lists included education, social services, real estate transactions, inheritance, religion, manufacturing, agriculture and other land use, business licensing, most road building, civil justice within states, local government, and control of personal property outside mercantile commerce. All of these are within Balkin’s broad definition of “commerce,” but control over all, the Federalists informed the public, were outside federal authority.

As for whether the expansions of federal power during the presidencies of FDR, LBJ, GHWB, BHO, et al., are constitutionally justifiable, we leave that issue to whatever theory of living constitutionalism (or, per Woodrow Wilson, discarding the Constitution as outmoded) that one wishes to adopt (or to reject). We disagree with the first sentence of Balkin’s article, that ”A good test for the plausibility of any theory of constitutional interpretation is how well it handles the doctrinal transformations of the New Deal period.” For otherwise, he writes, “we could not have a federal government that provides all of the social services and statutory rights guarantees that Americans have come to expect. The government could neither act to protect the environment nor rescue the national economy in times of crisis.”

We disagree. The original meaning is what it is, not what people in the 21st century might wish it to be. “The original meaning of the Constitution does not depend on whether it comports with Jack Balkin’s policy preferences on the welfare state any more than whether it comports with John Yoo’s policy preferences on habeas corpus or John McCain’s policy preferences on campaign speech.” Of course the judicial and political branches, the legal academy, and the American public do not necessarily have to consider themselves restrained by original meaning.

Incidentally, for any law student who aspires to be a better legal writer, I highly recommend reading the Balkin article, or any other Balkin article. Balkin is superb at presenting sophisticated topics in a straightforward style that is engaging to read. Particularly outstanding is Balkin’s Framework Originalism and the Living Constitution. Whether or not you are entirely persuaded that Balkin’s particular synthesis of originalism and living constitutionalism should  be the framework for constitutional interpretation, Balkin’s description of when, why, and how courts actually decide to enforce or not enforce various parts of the Constitution is very perceptive.