Judge Steeh’s decision yesterday dismissing the Commerce and Necessary and Proper Clause challenge to the individual mandate was certainly not welcome news to those of us who believe the mandate to be unconstitutional. But his remarkably thin opinion brings to the fore the revolutionary implications of upholding the individual mandate without addressing them.
First, that some, perhaps all, federal district judges considering these challenges would uphold the statute was foreseeable. When these challenges were brought, no one believed that all constitutional challenges would be upheld by every district court judge who would consider them. Few believed that any district court judge would have the fortitude to strike down the mandate, regardless of how the Supreme Court might ultimately rule. Heck, many doubt that the Supreme Court has the fortitude to strike down so major a piece of legislation.
Second, as I mentioned yesterday, calling this an “issue of first impression,” as Judge Steeh did, highlights the unprecedented nature of this claim of power. It expressly undercuts any claim that the mandate is constitutional under existing Supreme Court Commerce and Necessary & Proper Clause doctrine. Indeed, it was necessary for the judge to claim that there was no existing Supreme Court doctrine applicable to the mandate to justify his adopting the government’s novel “economic decisions” theory.
Third, by simply adopting the government’s “economic decisions” theory, and rejecting “economic activity” as an existing limiting doctrine, Judge Steeh’s opinion clearly exposes the expansionary nature of this claim of power. At the same time, he failed to seriously address any objections to this theory. Judge Steeh provided the other district judges considering the AG’s challenges in Virginia and Florida with no reasons to uphold the mandate beyond those already provided to them by the government in its briefs. So, other than the fact that another federal judge found the government’s argument persuasive, Judge Steeh’s decision provided no additional reasons for upholding the mandate that they did not already know.
Fourth, and most important: Judge Steeh offers no limiting principle to the “economic decisions” theory. His acceptance of the government’s argument that the health insurance market is “unique” is window dressing. Allowing Congress to regulate all “economic decisions” in the country because Congress has a rational basis for thinking such mandates are essential to its regulation of interstate commerce cannot and will not be limited to the sort of public goods argument offered in support of this mandate. Given that his decision, on his own account, is expanding federal power beyond existing Supreme Court doctrine, was it not incumbent upon him to deal with the slippery slope issues raised by his newly-minted “economic decisions” doctrine?
Yet, like the government, Judge Steeh is silent on the radical implications of accepting this new doctrine. Imagine all the slippery slope questions in oral argument when the “economic decisions” doctrine is more seriously considered than it was by Judge Steeh. Conversely, there are zero slippery slope objections to striking down all economic mandates that reach inactivity. Why? Because the individual insurance requirement is the only such economic mandate ever enacted. So it is the only law that would be unconstitutional if the Supreme Court concludes that Congress has no such power to impose economic mandates under the Commerce and Necessary & Proper Clauses.
For all these reasons, Judge Steeh’s opinion yesterday serves to highlight for other judges, and Justices, the truly revolutionary implication of upholding this mandate without even attempting to deal with these implications. In this way, it actually contributes to the constitutional case against the individual mandate.
UPDATE: I do not disagree with the “politics” point made by Orin. When Judge Hudson denied the government’s motion to dismiss the Virginia AG’s challenge, it greatly bolstered the credibility of the challenges, as well as the political opposition to the mandate. It ended all talk about the challenges being “frivolous.” Likewise, the government must feel greatly relieved by this victory, though I believe law professors are now sufficiently chastened and aware of the substance of this issue that they won’t now revert to their previous view that the constitutional challenges are frivolous. Without a doubt, it would be much better for the challengers that either Judge Hudson or Judge Vinson find the mandate to be unconstitutional. But, while winning is always better than losing, it was never realistic for opponents of the Act to count on success at the district court level.
I also agree with Orin that a circuit split makes a Supreme Court decision far more likely. Indeed, because one circuit would have had to strike down the Act, a circuit split guarantees a Supreme Court decision doesn’t it? However, given the high profile of this Act among the American people, I think it would be hard for the Court to duck the issue even if the Courts of Appeals all uphold the Act. If the act continues to be unpopular, would that not be widely perceived by the public as an abrogation of the Court’s responsibility? Indeed, would the Justices not reasonably fear that it would undermine the popular legitimacy of the “Supreme” Court to refuse to decide so highly publicized a constitutional controversy about which so much depends?
Finally, I disagree with Orin’s prediction of how the Supreme Court would split on the merits. I now think the most favorable vote for upholding the Act would be 6-3 (the same margin as Raich), and 5-4 is much more likely. And if there are four likely votes to strike down the Act, then this makes a cert grant more likely even if the four cannot be confident of a fifth vote. Conversely, should the Court strike down the mandate, a margin greater than a 5-4 margin (the margin of Lopez and Morrison) would be unlikely.