Distinguishing Wickard

Another interesting portion of the Eleventh Circuit’s decision striking down the individual mandate is its discussion of Wickard v. Filburn. As the court’s opinion notes, the Supreme Court (in Lopez) characterized Wickard as “perhaps the most far reaching example of Commerce Clause authority over intrastate activity.” As a consequence, the Eleventh Circuit concluded, Wickard “provides perhaps the best perspective on an economic mandate” and would need to be distinguished were the mandate to be struck down. With this in mind, below the jump are portions of the Eleventh Circuit’s discussion of Wickard.

Wickard is striking not for its similarity to our present case, but in how different it is. Although Wickard represents the zenith of Congress’s powers under the Commerce Clause, the wheat regulation therein is remarkably less intrusive than the individual mandate.

Despite the fact that Filburn was a commercial farmer and thus far more amenable to Congress’s commerce power than an ordinary citizen, the legislative act did not require him to purchase more wheat. Instead, Filburn had any number of other options open to him. He could have decided to make do with the amount of wheat he was allowed to grow. He could have redirected his efforts to agricultural endeavors that required less wheat. He could have even ceased part of his farming operations. The wheat-acreage regulation imposed by Congress, even though it lies at the outer bounds of the commerce power, was a limitation—not a mandate—and left Filburn with a choice. The Act’s economic mandate to purchase insurance, on the contrary, leaves no choice and is more far-reaching.

Although this distinction appears, at first blush, to implicate liberty concerns not at issue on appeal, in truth it strikes at the heart of whether Congress has acted within its enumerated power. Individuals subjected to this economic mandate have not made a voluntary choice to enter the stream of commerce, but instead are having that choice imposed upon them by the federal government. This suggests that they are removed from the traditional subjects of Congress’s commerce authority, in the same manner that the regulated actors in Lopez and Morrison were removed from the traditional subjects of Congress’s commerce authority by virtue of the noneconomic cast of their activity.

This departure from commerce power norms is made all the more salient when we consider principles of aggregation, the chief addition of Wickard to the Commerce Clause canon. Aggregation may suffice to bring otherwise nonregulable, “trivial” instances of intrastate activity within Congress’s reach if the cumulative effect of this class of activity (i.e., the intrastate activity “taken together with that of many others similarly situated”) substantially affects interstate commerce. Wickard, 317 U.S. at 127–28, 63 S. Ct. at 90. Aggregation is a doctrine that allows Congress to apply an otherwise valid regulation to a class of intrastate activity it might not be able to reach in isolation. . . .

The question before us is whether Congress may regulate individuals outside the stream of commerce, on the theory that those “economic and financial decisions” to avoid commerce themselves substantially affect interstate commerce. Applying aggregation principles to an individual’s decision not to purchase a product would expand the substantial effects doctrine to one of unlimited scope. Given the economic reality of our national marketplace, any person’s decision not to purchase a good would, when aggregated, substantially affect interstate commerce in that good. From a doctrinal standpoint, we see no way to cabin the government’s theory only to decisions not to purchase health insurance. If an
individual’s mere decision not to purchase insurance were subject to Wickard’s aggregation principle, we are unable to conceive of any product whose purchase Congress could not mandate under this line of argument.96 Although any decision not to purchase a good or service entails commercial consequences, this does not warrant the facile conclusion that Congress may therefore regulate these decisions pursuant to the Commerce Clause. See [Lopez] at 580, 115 S. Ct. at 1640 (Kennedy, J., concurring) (“In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far.”).

Thus, even assuming that decisions not to buy insurance substantially affect interstate commerce, that fact alone hardly renders them a suitable subject for regulation. See, e.g., Morrison, 529 U.S. at 617, 120 S. Ct. at 1754 (“We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” (emphasis added)). Instead, what matters is the regulated subject matter’s connection to interstate commerce. That nexus is lacking here. It is immaterial whether we perceive Congress to be regulating inactivity or a financial decision to forego insurance. Under any framing, the regulated conduct is defined by the absence of both commerce or even the “the production, distribution, and consumption of commodities”—the broad definition of economics in Raich. 545 U.S. at 25, 125 S. Ct. at 2211. To connect this conduct to interstate commerce would require a “but-for causal chain” that the Supreme Court has rejected, as it would allow Congress to regulate anything. Morrison, 529 U.S. at 615, 120 S. Ct. at 1752.

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