The New York Times Editorializes on Last Week’s Senate Judiciary Hearings on the Constitutionality of the Individual Mandate

Because I have been on the road, I did not have chance to comment on Thursday’s editorial in the New York Times entitled, “A Debate Bigger Than Reform” (registration required). It strikes me as significant that the editorial board of the Times now feels the need to address the constitutional objections to the individual mandate, just as the Senate Judiciary Committee decided to hold its first hearing on the constitutionality of the individual mandate more than a year after the Senate passed the bill. Unfortunately, like Akhil Amar and Laurence Tribe, the Times failed to address the actual objections being made by the plaintiffs and the actual reasoning of Judge Roger Vinson. Instead, the Times focuses on my testimony last week before the Senate Judiciary Committee. This could cause one to suspect that, if Judge Vinson’s actual legal analysis was as weak as alleged, it could be accurately reported and answered forthrightly. Instead we get this:

While the federal courts consider whether the health care reform law is constitutional, there is an intense and even wider debate playing out in political and legal circles about the Constitution and Congress’s power to solve national problems.

At a Senate Judiciary Committee hearing last week on the reform law, two witnesses argued fiercely opposing views. Walter Dellinger, a former acting solicitor general under President Bill Clinton, made a compelling case for the law’s constitutionality. He said that the commerce clause was the main source of Congress’s power for regulating the nation’s economy, an argument going back to Chief Justice John Marshall.

Randy Barnett, a Georgetown law professor, made a countercase based on what he calls “the lost Constitution,” an interpretation that would limit much of that basic law, including the commerce clause.

The hearing lasted over two hours, and I have not read the transcript, but I do not believe I mentioned “the lost Constitution.” Regardless, none of the challenges to the individual mandate are based on restoring any of the “lost clauses” of the Constitution, and neither was my testimony. All the challenges are based on existing Supreme Court doctrine defining the scope of the Commerce and Necessary & Proper clauses. None are based on the original meaning of the Constitution. Nor was Judge Vinson’s decision, though you would never know it from reading these three sources.

His ruling is based on the simple and undeniable fact that the “substantial effects” doctrine is currently limited to regulating “economic activity.” This is why Congress and the government have offered shifting explanations of how the mandate does regulate economic activity. Congress is regulating economic “decisions” (says the statute) or the activity of obtaining health care or the activity of paying for health care (says the government in its briefs), or economic “matters” (said Professor Dellinger). If the argument that the government is regulating economic activity is so straightforward, one might imagine that the government could by now have settled on a single theory of what activity is being regulated. And academics would not continue to shift the discussion to the tax power. But no.

In addition to groping for some way to describe inactivity as activity so as to bring the mandate under existing doctrine, the government has also relied upon a concurring opinion of Justice Scalia that Congress may reach noneconomic activity that is “essential” to the regulation of interstate commerce — an opinion in which Justice Scalia uses the terms “activity” or “activities” forty-two times. Perhaps Justice Scalia will someday extend this theory to include the power to regulate inactivity (or to mandate that persons engage in economic activity) when doing so is essential to a broader regulatory scheme, and it will be adopted by five justices. But that is not yet current doctrine, so we will just have to wait and see. Certainly a lower court judge is under no obligation to adhere to an extrapolation from Justice Scalia’s concurring opinion.

He made plain that his attack on the health care statute is a means to severely limit the power of Congress, urging senators to reach their “own judgment about the scope of Congressional powers,” regardless of “how the Supreme Court” has ruled.

The second part of this sentence is true. I did tell the Senators that, even if the Supreme Court would uphold the mandate, they each take an oath to obey the Constitution and they each had a duty to reach their own judgment about whether the mandate was truly “necessary and proper.” If they concluded it was either unnecessary or improper, then they should also conclude it was unconstitutional and vote to repeal it. There is nothing particularly controversial about this. [I stressed that this was what President Jackson did when he vetoed the renewal of the second national bank after the Court had upheld it as constitutional in McCulloch v. Maryland.] Senate rules include a procedure by which any Senator can make a point of constitutional order if he or she thinks a bill is unconstitutional. On this matter [of Congress exercising its independent judgment that some measure was not within its powers to enact], Charles Fried backed me up. (For some reason, the Times failed to mention Professor Fried’s testimony, which also supported the constitutionality of the mandate.)

But the first part of this sentence is entirely false. Declaring that Congress lacks the power to impose economic mandates on the people under the Commerce Clause would affect one, and only one, law ever enacted in the history of this country: The Affordable Care Act of 2010. This is because Congress has never done this before, which is conceded even by the federal judges who upheld the mandate’s constitutionality. So absolutely nothing in my arguments, or those of the plaintiffs, or those of Judge Vinson’s opinion, would limit Congress from doing anything it ever has before done. And this fact makes it much more likely that the Supreme Court would find it unconstitutional, as such a ruling would affect just one law.

To Prof. Dellinger, the Constitution’s commerce clause gives Congress broad authority to regulate economic activity crossing state lines if the regulation is necessary and proper.

Well, Professor Dellinger and I agree that existing Supreme Court doctrine certainly gives Congress this authority, which is all that matters for this litigation, and explains why no one is challenging this proposition.

The statute’s linked provisions prohibiting companies from denying coverage to people with pre-existing conditions and requiring most Americans to have minimum coverage fit that understanding.

The first half of this sentence is not being contested by me or anyone else. I was asked this point blank at the hearing and answered the question unequivocally. The second part of this sentence is a conclusion, not an argument. It restates the government’s claim rather than providing a reason for believing the claim is valid under existing doctrine. [But the fact these provisions are “linked” explains Justice Vinson’s refusal to sever the unconstitutional individual insurance mandate from the otherwise constitutional mandates being imposed on insurance companies.]

Prof. Barnett contends that the mandate goes beyond regulating health insurance by regulating “inactivity” and penalizing people who refuse to buy insurance. He said that giving government that power would allow it to compel virtually anything.

I may well have said this as a short hand, but the real argument is that the rationale(s) being offered on behalf of the mandate would give Congress the power to mandate anything (but see below).

We disagree, and so do years of judicial precedent. The Constitution contains limits on improper mandates by preserving a wide range of personal choices.

If the Times is referring to the Due Process Clause, then this actually is a concession that the Times believes that the only constraints on the Commerce Power is to be found in the Bill of Rights. And this means that, by its reading, the powers identified in Article I, Section 8 are indeed unlimited (except as qualified by the Bill of Rights), just like the plenary police power of the states. But this proposition has been rejected by “years of judicial precedent” that reaffirmed that the powers enumerated in Article I, Section 8 are few and limited, and do not have the same scope as the police powers of states, which are numerous and broad. And Professors Dellinger and Fried know, even if the editors of the Times do not, that the current constitutional protections of “personal choices” are extremely narrow thanks, among other things, to having “lost” the Ninth Amendment and Privileges or Immunities Clause of the Fourteenth Amendment.

And while the idea of penalizing people for not acting sounds ominous, it inaccurately describes the problem. When people don’t buy health insurance — because they can’t afford it or think they don’t need it — the cost of treating them falls on the national economy.

This does not describe a constitutional principle. The courts have long refrained from assessing the factual “necessity” of a measure. What is needed is a judicially administrable constitutional principle, like the distinction between “economic” and “noneconomic” activity, or the distinction between “activity” and “inactivity.”

Prof. Dellinger explained how one of the biggest controversies in American law can be resolved by applying mainstream understanding of the Constitution. Of the mandate, he concluded, “Will it lead to some extraordinary expanse of congressional power? It will not.”

To be sure, this was Professor Dellinger’s prediction, but he offered no constitutional principle explaining what constitutional limits on the power of Congress to impose economic mandates might exist. The only constraint to which he alluded [apart from Due Process] was political. Indeed, Professor Fried forthrightly denied there were any constitutional limits on the power of Congress to mandate economic activity [apart from Due Process]. In his testimony, he said Congress could mandate that everyone buy gym memberships, or broccoli. He merely denied it could make you go to the gym or eat the broccoli it made you buy, presumably because it would violate what he called the “Liberty Clause” of the Constitution. Again, this is to assert rather than deny that the Commerce and Necessary and Proper Clauses are, in and of themselves, unlimited. That was both his and Professor Dellinger’s position. When coupled with the Necessary and Proper Clause, on their reading the power of Congress “to regulate commerce . . . among the several states” in itself is without any limit.

Prof. Barnett left no doubt that he was promoting a broader agenda. If the mandate is upheld, he warned sensationally, “Congress would have all the discretionary power of a king and the American people would be reduced to its subjects.”

My views on the Constitution and how it should be interpreted are a matter of public record. My only agenda with regard to the mandate, however, is to stop the courts from recognizing an entirely new and dangerous prerogative power in Congress to provide for the good of the realm by imposing economic mandates on the people. About this I have also been completely candid.

His re-reading of the Constitution would remove that made-up peril. Based on no good reason, it would also fundamentally weaken government’s ability to address many of the nation’s most serious problems.

In my testimony, I offered no interpretation or “reading” of the Constitution itself. I confined myself entirely to existing doctrines of the Supreme Court defining the scope of the Commerce and Necessary and Proper clauses. I do not see how denying Congress a power that it has never before seen any need to exercise, could possibly “fundamentally weaken its ability to address many of the nation’s most serious problems.” There are other ways to address this particular problem. Does the Times expect the government to use mandates in the future to address others? Which ones? Inquiring minds want to know.

PS: After my testimony, Senator Durbin followed up with some additional questions. One of which was this one:

Orin Kerr is a professor at the George Washington University Law School and a former Republican staff member of this committee. Professor Kerr wrote that Judge Vinson in his decision “is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way.” Do you believe it is preferable for a district court judge to base decisions on the way the judge thinks existing law should be as a matter of first principles, or for a judge to base decisions on relevant Supreme Court doctrine?

I cannot say I completely understand what Orin is claiming here, but it seems similar to his previous claim that I was interpreting the Constitution “as it ought to be” rather than “as it is.” Only now a federal judge is describing “existing law” as it ought to be rather than as it “is.” I do not believe that Judge Vinson has misstated existing doctrine in any way. Instead, he is relying on an accurate account of “relevant Supreme Court doctrine” (as am I). Orin obviously disagrees, but I don’t see how it advances our understanding to accuse Judge Vinson of “reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles.” This strikes me as an ad hominum argument, but perhaps I am mistaken about this. Still, since the government is seeking judicial authorization for a new power to impose economic mandates, I suppose first principles may well be implicated in assessing its proposal to go beyond existing doctrine — or whether a reading of Supreme Court doctrine that leads to the effective demise of the enumerated powers scheme is a “proper” interpretation of the commerce power.

[Edited for clarity and to correct glitches; some additional wording is indicated by brackets.]

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