No Limits? No Mandates.

Much has been made by law professors on the supposed weakness of drawing a constitutional line at the regulation of “inactivity” as opposed to “activity.” For some reason, law professors have been less inclined to examine critically the limits on the power of Congress to impose economic mandates on the people that have been advanced by the government during the litigation. Perhaps this is due to a widespread acceptance by law professors that there are no judicially enforceable limits on Congressional regulation of “the economy.” But because the Supreme Court has never endorsed this proposition, the government has felt obligated to propose a limiting principle. Or, as I explain in a column in today’s Washington Examiner, it has proposed three limiting principles at various times. In my column I explain why each of these purported limits fail to limit.

In the 4th Circuit in Richmond, the government contended that Congress was limited to imposing mandates with regard to issues of truly national, as opposed to local, concern.

While this distinction is found in a 1942 case, it has never been adopted as a rule of law to be enforced by the courts. Nor will it be. Courts are never going to assess whether a problem is “truly” national or “truly” local, because they are incapable of drawing any such line in a principled fashion. Instead they will defer, as they typically do, to the assessment of Congress that a particular problem is of national concern.

In the 6th Circuit last week in Cincinnati, the government offered a different limit: As the Supreme Court held in 1995, Congress may not regulate wholly intrastate noneconomic activity.

But this principle does not provide any meaningful limits on the use of economic mandates. If an economic mandate is allowed in this case because Congress has a “rational basis” for believing it is essential to its economic regulatory scheme, then mandates will forever be available whenever Congress enacts a scheme of economic regulation under its commerce power.

Which brings us to the “broccoli mandate.” In the Sixth Circuit, the government responded to this by asserting, as it has from the beginning of the litigation, that “health care is different.” If you show up at the grocery store, the store is not required by federal law to supply you with food, thereby allowing you to “free ride” on the food distribution system. I summarize this argument as follows:

Health care is “unique” from any other market because (a) the need for health care cannot always be predicted; (b) the expenses can be massive; (c) federal law requires emergency rooms to provide care to those who can’t pay; so (d) costs are thereby shifted to the prices charged insurance companies, thereby raising insurance rates to everyone. Moreover, (e) by allowing people to buy insurance on the way to the hospital, the ACA itself creates a massive new “free-rider problem” that only the individual mandate can solve.

However, as counsel from Thomas More pointed out, under the government’s logic, Congress can require you to buy healthy food as part of its regulation of health care. As Charles Fried affirmed in his Senate Judiciary Committee Testimony defending the mandate, Congress does have the power to make you buy gym memberships, or broccoli. What it cannot do, he claimed, is make you eat the broccoli or work out. But his source for this limit, was not any limits on the enumerated powers of Congress themselves. It was the Due Process Clause of the Fifth Amendment.

In other words, according to Fried, the Commerce Clause does give Congress power to make you buy and eat your broccoli, but the “liberty clause” of the Due Process Clause restricts the latter. This is a far more candid response than has been given by the government so far in oral arguments. Tomorrow, in the hearing in Atlanta, it would be interesting to see if the judges press Attorney General Katyal on this point.

But the “health care is different” argument also faces an additional fundamental problem that I explain in my Examiner column:

Because it is purely a factual claim, however, “health care is unique” simply fails to provide a legal or constitutional limitation on the powers of Congress. The Supreme Court has long abstained from second-guessing the factual judgments of Congress, it is not going to start now, and the government knows it. The next time Congress decides to impose an economic mandate, the courts will defer to Congress’ own assessment of whether another economic mandate is “essential.” Thus, if ACA is upheld here, it will be the last time such a mandate will ever be questioned in a court of law.

In short, this purported “limit” is not a judicially enforceable limit at all. Unless the government provides a better answer than it has to date, it will be in shaky grounds in the Supreme Court, five justice of which may well affirm the proposition: “No Limits? No Mandates.”

You can read my Examiner column here.

[Disclosure: I am one of the attorneys representing the National Foundation of Independent Business in its challenge to the Affordable Care Act in the Eleventh Circuit.]

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