My Answers to Questions Posed by Senators Durbin and Sessions

A few weeks ago, I testified before the Senate Judiciary Committee hearing on the constitutionality of the individual insurance mandate. I recently replied to written follow up questions from Senators Durbin and Sessions. I thought Volokh readers would be interested in what they asked and how I answered. My answers are in bold.

Questions from Senator Dick Durbin

1. Do you agree that health care services are a form of interstate commerce that can be regulated by Congress?

Under existing doctrine, health care services provided across state lines would likely be considered a form of interstate commerce. Under existing doctrine, health care services — like other “economic activity” — that does not cross state lines may still be regulated by Congress under the Necessary & Proper Clause if such activity, in the aggregate, has a “substantial effect” on interstate commerce.

2. Does paying for health care services constitute activity?

Paying for anything, including health care services, is a form of activity; conversely, not paying for anything, including health insurance or health care services, is inactivity.

3. 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?

To the extent I understand Professor Kerr’s statement, I do not agree it accurately characterizes Judge Vinson’s opinion. In his opinion, Judge Vinson is attempting to apply, in good faith, existing Supreme Court doctrine. As the health insurance mandate is unprecedented in American history, there can be no Supreme Court case directly authorizing such a means of regulating interstate commerce. Therefore every defender of the mandate is extrapolating from what the Supreme Court has said in cases not involving economic mandates to what they either hope or expect the Supreme Court says in a future case unlike those of the past. The Supreme Court has said that Congress may go so far — to regulate intrastate economic activity — and no farther. Judge Vinson is merely following these cases, and then refusing to expand them beyond the line they currently draw. In contrast, two district court judges upholding the individual mandate have admitted the lack of any directly applicable precedent and yet extended current doctrine to allow Congress to regulate economic “decisions” rather than activity. Perhaps these judges are doing what Professor Kerr is describing but, as I said, I do not fully understand his position on how judges are supposed to address novel claims of Congressional power.

Questions from Senator Jeff Sessions

1. During his opening statement at the hearing, Senator Durbin claimed that, in holding the individual mandate unconstitutional, Judge Vinson ignored relevant precedents and created a new test distinguishing “activity” and “inactivity” in determining whether Congress has power to regulate under the Commerce Clause.

a. Are you aware of any relevant Supreme Court precedent that directly contradicts Judge Vinson’s holding?

There are no Supreme Court cases, of which I am aware, that contradict Judge Vinson’s holding.

b. You testified at the hearing that “[i]n 2010 something happened in this country that has never happened before: Congress required that every person enter into a contractual relationship with a private company.” If a law of this type has never before been passed by Congress, do you agree that there were no Supreme Court precedents directly addressing the question before Judge Vinson?

The Supreme Court has used the Necessary and Proper Clause to extend the power of Congress beyond the regulation of interstate commerce, to reach wholly intrastate “economic activity” when that activity in the aggregate substantially affects interstate commerce. These Supreme court precedents authorized the Congress to go this far and, to date, no farther. There is no precedent upholding the imposition of economic mandates on the people as a means of exercising Congress’s commerce power.

c. Do you believe that a judge is a judicial activist when he decides a question of first impression in light of the text and original public meaning of a provision of the Constitution, rather than further extending the Supreme Court’s expansive reading of a provision?

As the Supreme Court demonstrated in DC v. Heller, in a case of first impression, it will examine the original meaning of the Constitution. Where the Supreme Court has developed doctrines governing the scope of the Commerce and Necessary and Proper clauses, it is not the responsibility of an inferior federal judge to extend Congress’s power beyond that already authorized by the Supreme Court. This criticism would more justly be leveled at the district court judges who have upheld the mandate by extending the power of Congress to regulate “economic decisions” — something the Supreme Court has never mentioned, much less held. But whether or not it is proper for an inferior federal judge to uphold new and unprecedented Congressional powers, federal district court judges are under no obligation to do so.

2. Senator Durbin alluded to your testimony during a question for Professor Fried, in which he argued that the regulation addressed in Wickard v. Filburn, 317 U.S. 111 (1942) had the effect of forcing Roscoe Filburn into the market to buy wheat, since Mr. Filburn made clear that the wheat he wanted to grow was for the consumption of himself and his chickens. Professor Fried testified that Wickard could be distinguished from the present question only if we assume that Mr. Filburn and his chickens did not have to eat.

a. As a factual matter, could Mr. Filburn and his chickens have grown and eaten some suitable crop that was not subject to the regulation, rather than purchasing wheat on the open market?

Wickard v. Filburn involved imposing limits in the amount of wheat that could be grown by a commercial farmer as a means of raising the interstate price of wheat. Whatever may have been the secondary effects of this marketing order — and there were bound to be many secondary effects throughout the economy — Congress did not mandate that Mr. Filburn raise wheat, and did not mandate what he fed his livestock — or that he must continue to raise livestock. Whether or not it was a good policy to restrict the supply of wheat available to consumers so as to increase the prices received by wheat farmers as a group, this scheme bore no resemblance to mandating that all Americans engage in a particular form of economic activity by entering into a contract with a private company. According to Professor Fried’s logic, if Congress had the power to place a prohibitive tax or duty on all imported automobiles and exercised this power, it would have the “effect” of Americans buying American-made cars. Therefore, Congress can simply mandate all Americans to buy an American made car — even those who do not wish to purchase any car. Professor Fried admitted as much in his testimony when he said that Congress had the power to make every American buy a membership in a gym.

b. Does that same ability to avoid the regulation’s effect exist for the individual health insurance mandate?

The mandate reads: “An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.” So far as I know, only those with religious objections or incarcerated prisoners can avoid the mandate, which by its terms applies to everyone else.

3. At the hearing, Professor Fried testified that Congress could mandate all Americans purchase almost any product, so long as there is a national market involved and doing so does not violate some other specific prohibition in the Constitution. In today’s highly mobile society, people often move from state to state to find or retain work. Therefore, there is arguably a national market in labor. Today, we have roughly nine percent unemployment. As a result, Congress might reasonably conclude that market is not functioning properly and efficiently. Under Professor Fried’s reading of the Commerce Clause, would it be constitutional for Congress to pass a law that required every employer in America to hire at least one new worker?

Without a doubt he would find this within the commerce power of Congress (subject perhaps to other express constraints), and I predict he will answer this question in the affirmative.

4. At the hearing, Attorney General Kroger testified

The Constitution does not create or protect the freedom to freeload. Right now, we have 40 million Americans who don’t have healthcare coverage, but those 40 million people have the right to go to a hospital emergency room and hospitals are legally required to provide that care. As a result of that, they rack up approximately forty billion dollars of healthcare fees every year. The opponents suggest that this cost-shifting is constitutionally protected. I would simply suggest that there is no constitutional right to force other people to pay for your own healthcare when you decline to take responsibility for yourself.

a. Attorney General Kroger mentioned a legal requirement to provide healthcare to patients in hospital emergency rooms, regardless of their ability to pay. Has there United States Congress ever passed such a law, or are these solely state laws?

From what I understand, Congress has made it a condition of the receipt of Medicare or Medicaid funding that hospitals operating emergency rooms treat all comers regardless of their ability to pay or having insurance. The Emergency Medical Treatment and Active Labor Act (EMTALA), enacted in 1986, requires hospitals and ambulance services to provide care to anyone needing emergency healthcare treatment regardless of citizenship, legal status or ability to pay. EMTALA applies to “participating hospitals” that accept payment under the Medicare program. There are no reimbursement provisions. This was an exercise of the Taxing and Spending power of Congress — not its Commerce Clause power.

b. If the requirement to provide care is imposed by law, is it accurate to say that the patient is engaged in cost-shifting? Would it be more accurate to say that the government has imposed cost-shifting as a matter of law?

Yes, and if Congress has imposed cost shifting thereby creating an economic burden on hospitals, the constitutional means of addressing this burden is for the tax payer to provide a subsidy to the providers. But a far more expensive form of cost-shifting are price caps on Medicare dispersement leading health care providers to increase the prices they charge third-party insurance companies. This cost shifting greatly increases the price of health insurance and leads millions of Americans to refrain from insuring themselves at rates far beyond those presented by their own actuarial risk. If true insurance is a “bet” between the insurer and the insured, this cost-shifting is forcing many younger and healthier consumers either to make a bad bet or refrain from betting. So they opt to refrain.

5. At the hearing, Professor Dellinger mentioned that Congress had once passed a law requiring individual male citizens to provide themselves with muskets, gear and uniforms of a certain specification. I believe Professor Dellinger was referring to the Militia Act of 1792, which required all able-bodied male citizens, 18 years of age or older, to be enrolled in a militia and provide themselves with certain supplies for that service.

a. Do you believe Congress most likely relied on its Commerce Clause powers in passing that statute?

Congress was relying on its Article I, section 8 power “To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States . . . ” The militia power, and the duty of a citizen to serve, pre-existed the formation of national government.

b. Do you believe the Militia Act of 1792 would have been a permissible exercise of Congress’ authority if it were based solely on Congress’ Commerce Clause powers?

It would not.

c. In your testimony, you alluded to jury duty, selective service registration and several other actions the federal government requires of each individual citizen. You described these as traditionally-recognized requirements that were necessary for the continued function of the government itself. In 1792, the United States did not have a permanent standing army. Do you think service in the militia was among those traditionally-recognized requirements necessary for the continued function of government?

Without question, it was considered a fundamental duty of citizenship. Congress is now seeking to add an new and unprecedented duty of citizenship to those which have traditionally been recognized: the duty to engage in economic activity when Congress deems it convenient to its regulation of interstate commerce. And the rationales offered to date for such a duty would extend as well to the performance of any action, whether economic or not, when Congress deems it convenient to the exercise of its power over interstate commerce. The recognition of so sweeping a duty would fundamentally alter the relationship of American citizens to the government of the United States.

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