The Individual Mandate is Unprecedented? So what??

Over on Concurring Opinions, Gerard Magliocca is bothered by my persistent claim that the health insurance mandate is “unprecedented”:

Folks like Randy Barnett rely heavily on the idea that congressional regulation of inactivity (or commercial coercion) is unprecedented under the Commerce and Taxing Clauses. But isn’t it is equally unprecedented to establish a “private action” limitation on congressional authority pursuant to those provisions. Where does that doctrine come from? There’s no case law to support the concept, for example. Thus, each side in the litigation wants courts to do something new–either by upholding or invalidating the individual mandate. It’s a jurisprudential wash.

Magliocca is a thoughtful guy and, in an important sense, I agree with him here. For months now I have been affirmatively saying that the bare fact that this exercise of power by Congress is unprecedented does not in and of itself make it unconstitutional. Here is how that point is made in my Wall Street Journal interview a few weeks ago:

Such a mandate is unprecedented: “This is the first time in American history that Congress has claimed to use its power over interstate commerce to mandate, or require, that every person enter into a commercial relationship with a private company,” Mr. Barnett notes. “As a judicial matter, it’s also unprecedented. There’s never been a court case which said Congress can do this.” That doesn’t establish that Congress can’t do it, but the high court could reach that conclusion without undoing existing law.

Although the passage in bold is the interviewer’s words, he was getting that point from me. In the balance of the interview I explain why I think the mandate is not only unprecedented; it is also unconstitutional. This will also be the subject of my Hayek Lecture at NYU on October 14th (details here).

Having said this, I think the unprecedented nature of the individual mandate is highly significant for a number of reasons that the mandate’s supporters would rather not discuss. First, it destroys their constructed narrative that any constitutional challenge to the individual mandate is “frivolous” or, as Washington & Lee lawprof Tim Jost put it on the Politico’s Arena back on September of 2009, “this is not a serious legal issue. The claim that health reform is unconstitutional was apparently adopted as a talking point at last week’s Republican briefing on health care reform … it is not, however, an argument taken seriously by constitutional scholars.” Several of the Republican state attorneys general were criticized by home state Democrats for wasting tax payer money pursuing a “ridiculous enterprise,” a “specious claim,” or, yes, a “frivolous” lawsuit. Professor Magliocca’s contention that “[i]’s a jurisprudential wash”–like Tim Jost’s latest reference on Politico to “the closeness of the case”–is a major concession that the constitutional challenges are serious. Indeed, for some judge-centric lawprofs, these concessions are probably driven by Judge Hudson’s denial of the government’s motion to dismiss the Virginia AG’s lawsuit. Judge Hudson’s opinion, while not a ruling on the merits, was an express ruling on the seriousness of the challenge. Frivolous challenges get dismissed. As a commenter on Concurring Opinion observes, “Well, since Randy is mainly trying to combat those who say his argument is a dead loser, going from “sure loser” to “jurisprudential wash” is a pretty big advance.”

Second, whoever has the formal burden of proof in a lawsuit challenging the mandate’s constitutionality, it is the government who must somehow justify its claim that Congress has the power to impose the mandate. This is an implication of the federal government being a government of limited and enumerated powers. If the issue is really a “wash,” then such a claim is currently not authorized by prior precedents of the Supreme Court and the appropriate stance of an inferior court would be to strike down the mandate until the Supreme Court decides to extend Congress’s power beyond where it has gone before. While the Supreme Court is, of course, free to do this, it is not at all clear that a District Court judge should be devising a new and unprecedented doctrine extending federal power. In other words, unless the government can justify this exercise of power on the basis of precedent, a lower court should sustain the challenge and leave the creation of new doctrine to the Supremes.

Third, due to the now-concededly unprecedented nature of this claim of power, ANY constitutional theory adopted by the Supreme Court will be a novel one. Any doctrine UPHOLDING Congress’s power to impose a mandate either as an exercise of its Commerce Power or as a necessary and proper means to regulating interstate commerce will be new. For this reason, defenders of the mandate cannot complain about the novelty of a theory opposing the constitutionality of the mandate because ALL theories about so unprecedented an exercise of power will necessarily be new and novel. For example, the doctrine that it is “improper” for Congress to exercise its Commerce Clause power to “commandeer” or mandate state legislatures or executive branch officials was novel when it was adopted by the Supreme Court in the 1990s because imposing such mandates on states was until then unprecendented. So too with the individual mandate that, for the first time in American history, attempts to commandeer the American people because it is deemed by Congress to be convenient to the regulation of interstate commerce. In sum, due to the unprecedented nature of the mandate, that a constitutional objection to it is novel provides no objection to the objection. As Professor Magliocca implictly acknowledges, any and all theories in this case will be novel.

So that should bring us to the merits of the claim that the individual mandate is not justified as an exercise of the Commerce or Tax powers, nor as a necessary and proper means to the end of regulating interstate commerce. Professor Magliocca is entirely correct that the unprecedented nature of the mandate does not supply the analysis of why it is unconstitutional. While I have already outlined my views of this elsewhere, as the debate had progressed my views have been further developed and refined. In my upcoming Hayek Lecture at NYU in October, I will be explaining at greater length why this mandate is unconstitutional. But getting everyone to realize the unprecedented nature of this claim of Congressional power was a necessary first step to get law profs, the media, and judges to focus on its dubious constitutionality.

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